dismissed O-1A Case: Bodybuilding

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service; 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
o U.S. Citizenship 
"' and Immigration 
Services 
DATE: MAR 03 2015 Office: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(0)(i) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCfiONS: 
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 
poJicy 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://www.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. 
;;:� A-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www .uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the 
appeal. 
The petitioner filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(0)(i), as an alien of extraordinary ability in athletics. The petitioner, a Nevada-based 
sole proprietor, is a talent manager. The petitioner requests that the beneficiary be granted 0-1 
classification for a period of three years so that she may work as a professional bodybuilder in the 
United States. 
After issuing a request for evidence (RFE) and then considering the evidence of record, the director 
denied the petition concluding that the petitioner did not establish that the beneficiary has achieved 
the required national or international acclaim in her field. Specifically, the director determined that 
the petitioner had not satisfied the initial evidence requirements set forth at 8 C.P.R. 
§ 214.2(o)(3)(iii), which requires documentation of a one-time achievement or evidence that meets 
at least three of the eight regulatory criteria. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to us for review. The petitioner submits a brief and additional evidence in 
support of the appeal. For the reasons discussed below, the petitioner has not submitted probative 
evidence satisfying the plain language requirements of at least three of the eight categories of 
evidence listed at 8 C.P.R. § 214.2(o)(3)(iii)(B)(l)-(8). 
I. TheLaw 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim, whose achievements have been recognized in the field through 
extensive documentation, and who seeks to enter the United States to continue work in the area of 
extraordinary ability. The extraordina ry ability provisions of this visa classification are intended to be 
highly restrictive. See 137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). The regulation at 8 C.P.R. 
§ 214.2(o)(3)(ii) defmes, in pertinent part: "Extraordinary ability in the field of science, education, 
business, or athletics means a level of expertise indicating that the person is one of the small 
percentage who have arisen to the very top of the field of endeavor." 
The regulation at 8 C.P.R. § 214.2(o)(3)(iii) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the beneficiary's sustained acclaim and the recognition of the beneficiary's 
achievements in the field through evidence of a major internationally recognized award. 8 C.F.R. 
§ 214.2(o)(3)(iii)(A). If the petitioner does not submit this evidence, then a petitioner must submit 
sufficient qualifying evidence that meets at least three of the eight categories of evidence listed at 
8 C.F.R. § 214.2( o )(3)(iii)(B)(l)-(8). If the petitioner demonstrates that certain criteria in paragraph 
(o)(3)(iii)(B) of this section do not readily apply to the beneficiary's occupation, the petitioner may 
submit comparable evidence in order to establish the beneficiary's eligibility. 8 C.P.R. 
§ 214.2(o)(3)(iii)(C). 
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The submission of evidence relating to at least three criteria does not, in and of itself, establish 
eligibility for 0-1 classification. 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). In addition, we 
have held that, "truth is to be determined not by the quantity of evidence alone but by its quality. 
Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the 
director must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to 
be proven is probably true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. Discussion 
A. Extraordinary Ability in Athletics 
This petition, which the petitioner filed on November 18, 2013, seeks to classify the beneficiary as 
an alien with extraordinary ability as a Professional Athlete. The record indicates that the 
beneficiary is a 39-year-old bodybuilder who has participated in competitive bodybuilder 
competitions in the United States and Canada between The record further indicates 
that in 2011, the beneficiary turned professional after obtaining professional level qualification 
from the 1 In the petitioner's letter 
dated October 21, 2013, summarizing the terms of its agreement with the beneficiary, the 
petitioner states it seeks to employ the beneficiary "to compete in adult professional bodybuilding 
and fitness competitions" and for "youth training activities." The petitioner has provided an 
itinerary of bodybuilding events at which the beneficiary will compete. 
The record consists of: the Form I-129 petition and supporting evidence; the director's request for 
evidence dated November 29, 2013; the petitioner's response; and, the director's decision dated 
January 4, 2014. We have reviewed the evidence of record in its entirety in reaching our decision. 
1. Consideration of the Evidentiary Criteria 
The sole issue to be determined is whether the petitioner submitted evidence to establish that the 
beneficiary enjoys the requisite sustained national or international acclaim. If the petitioner 
establishes through the submission of documentary evidence that the beneficiary has received a 
major, internationally recognized award pursuant to 8 C.P.R .. § 214.2(o)(3)(iii)(A), then it will 
have submitted the requisite initial evidence pertaining to the beneficiary's acclaim and 
recognition. The regulations cite to the Nobel Prize as an example of a major award. Id. The 
petitioner does not assert that the beneficiary has satisfied this criterion. Instead, the petitioner has 
submitted evidence relating to the criteria at 8 C.P.R. § 214.2(o)(3)(iii)(B). 
At the time of filing, the petitioner indicates that the beneficiary meets the criteria listed at 8 C.P.R. 
§ 214.2(o)(3)(iii)(B) subparagraphs (1), (2), and (3). In denying the petition, the director determined 
that the evidence submitted satisfied only two of the eight evidentiary criteria. The petitioner has not 
1 According to the constitution, " 
" 
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submitted any evidence relating to the criteria at 8 C.P.R. §§ 214.2(o)(3)(iii)(B)(4), (5), (6), (7) and 
(8), and raises no objection to the director's determination that these criteria have not been met. 
We will discuss the three criteria the petitioner claims below. After careful review of the record and 
for the reasons discussed herein, the petitioner has not established eligibility under three of the eight 
evidentiary criteria under 8 C.P.R. § 214.2(o)(3)(iii)(B). 
2. Consideration of the Evidentiary Criteria 
Documentation of the alien's receipt of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor 
To meet criterion number one, the petitioner must submit documentation of the alien's receipt of 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 
8 C.F.R. § 214.2(o)(3)(iii)(B)(l ). 
The petitioner indicates that the beneficiary satisfies this criterion based on the following awards: 
• 
• 
• 
• 
• 
• 
• 
• 
• 
The petitioner submitted copies of trophies and documentary evidence of the beneficiary's receipt 
of the above-referenced prizes, including testimonials and newspaper articles. 
The petitioner also submitted evidence that as of 
in the 
the beneficiary was ranked 
The record indicates that as a result of winning the overall . at the 
the beneficiary turned professional, obtaining professional 
level qualification and earning an ). Since turning 
professional in 2011, the petitioner's competition at the professional level resulted in the 
place finish at the , as well as place finishes at the 
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The petitioner submitted testimonials and published articles to establish the significance of the 
events sponsored by the 3 and the within the sport. The beneficiary's ranking in the 
field is also commensurate with having won nationally or internationally recognized awards. The 
director determined that the beneficiary meets this criterion. The evidence of record demonstrates 
that the above-referenced and competitions are considered nationally or 
internationally-recognized events within the sport of female bodybuilding and, as such, satisfy the 
plain language of the evidentiary criterion at 8 C.F.R. § 214.2(o)(3)(iii)(B)(l). 
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. 
In order to demonstrate that membership in an association meets this criterion a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission 
to membership. Membership requirements based on employment or activity in a given field, 
minimum education or experience, standardized test scores, passing certification exams to work in 
the field, grade point average, recommendations by colleagues or current members, or payment of 
dues, do not satisfy this criterion as such requirements do not constitute outstanding achievements. 
Further, the overall prestige of a given association is not determinative; the issue here is 
membership requirements rather than the association's overall reputation. 
The petitioner relies on the beneficiary's professional memberships in the to 
meet this criterion. The petitioner submitted two letters from Ms. secretary of 
the Professional League. 4 In a letter dated June 16, 2013, Ms. states that the 
beneficiary "is a current active, professional in good standing with " Ms. also 
states that "in order to be designated as a professional athlete by the : an athlete must prove 
herself to be worthy of the distinction" and that "[t]he qualification process to become an 
professional bodybuilding athlete is extremely selective." In a letter dated November 1, 2013, Ms. 
states that "accepts only members with outstanding achievements and all members' 
achievements are judged by recognized national or international experts in their disciplines." 
Merely repeating the language of the statute or regulations does no t satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 
41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney 
General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). More specifically, she states: 
"To become an professional member and to be eligible to enter the world of professional 
bodybuilding, the member has to qualify by competing in a pro-qualifying show and achieve 
outstanding results." 
3 According to the website, the 
, 
4Ms. did not sign either letter; rather her name appears as typed in a cursive font at the bottom of 
the letter. 
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In support of Ms. letters, the petitioner submitted constitution, which provides: 
9.2 Direct Membership: 
Although the shall not offer direct individual membership, members of National, 
Regional and Continental Federations, by virtue of their acceptance into the 
fam ily, agree to be bound by the Constitution or Rules. 
9.3 Membership by Association: 
Athletes, judges, administrators, and other officials become Members of the by 
virtue of their association with their National, Regional or Continental Federation 
pursuant to the terms and conditions as set out in the constitution and rules of the 
respective National, Regional or Continental Federation.5 
While counsel quotes the above provisions, counsel adds the following language: "Professional 
athletes, judges, administrators and other officials become members of the by virtue of their 
association with the Professional Division." This language, however, does not appear in the 
constitution that the petitioner submitted. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
Upon review, membership in is based on membership in a National, Regional or Continental 
Federation. However, the petitioner initially did not provide evidence of the membership criteria for 
the National, Regional or Continental Federations of which the beneficiary is a member. The director 
concluded that the petitioner has not established that membership in the requires outstanding 
achievements as judged by national or international experts. 
The petitioner also submitted several letters of support discussing the ben efic ia ry' s amateur and 
professional victories. 
The petition er provided a l ette r from Mr. pa st Secretary, Pro and 
Amateur Judge, past Secretary, Judge, South Region Director . He confirms that the 
beneficiary has been competing in amateur bodybuilding competitions in Canada "since ," and 
that the beneficiary became a professional bodybuilder in Mr. describes the beneficiary 
as "one of our top and Professional Canadian bodybuilders." 
Mr. , Mr. and Mr. 
the petitioner's achievements of having obtained her 
for female bodybuilding. 
====- ' body building athletes, reiterate 
, and having been ranked 
Mr. , a family friend of the beneficiary for eight years, praises the beneficiary's 
"positive energy" and "winning spirit." Dr. a client of the beneficiary, attributes 
5 On appeal, the petitioner has quoted language purportedly from this portion of the constitution, but 
the quoted language is inconsistent with the actual language contained in the constitution. 
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his high level of conditioning and weight loss to the beneficiary's "excellent guidance and 
professional expertise" as a nutritional consultant and trainer. 
Ms. _ , a professional bodybuilder, states that she has known the beneficiary as her 
competitor for two years. Ms. describes the beneficiary as having "a lot of potential. " She 
notes that "[the beneficiary] has several titles under her belt, she is ranked among the top 
Professional bodybuilders '' She further describes the beneficiary as having "great 
symmetry, an esthetically [sic] pleasing to the eye and marketable." 
The petitioner provided two undated letters from Mr. , President of ; Pro 
Judge. The first letter contains three sentences that also appear in the June 16, 2013, letter from 
Ms. Mr. further states that the beneficiary "has worked diligently to achieve the 
status of professional Athlete." He notes that "[c]urrently in Canada there are only seven 
active professional bodybuilding competitors." While a large number of members suggests 
that an association is not exclusive, we will not presume that every association with a small number of 
members is sufficiently exclusive to meet this criterion. In his second letter, Mr. verifies that 
the beneficiary is "a member in good standing with the pro league, the I and the 
" 
The petitioner also submitted extensive documentation pertaining to the 
Qualification Series rules for determining who may qualify to compete at division 
competitions, as an example of the prestige of the However, as previously stated, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
The petitioner further contends that in "man y" previous decisions the United States Citizenship 
and Immigration Services (USCIS) determined that "membership in · requires outstanding 
achievements of their members" and, as such, satisfied this evident iary criterion. However, 
counsel has not furnished evidence establishing that the facts of the instant petition are analogous 
to those unidentified cases. Regardless, we are not bound by a decision of a service center or 
district director. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
On appeal, the petitioner provided the actual membership criteria for the 
Federation of which the beneficiary is a member. The petitioner submitted 
regulations, which provides: 
E) MEMBERSHIP/ENTRY FEES: 
the Regional 
rules and 
1. You must be a resident of for a minimum of 6 months before you can 
apply for membership unless you are transferring from another Province. 
2. Membership fees are $100.00/calendar year .. .. 
The petitioner also submitted bylaws, which similarly provides: 
7.01: Regular Member 
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Any individual, having officially resided in for a period of at least six 
(6) months immediately prior to applying for membership, may become a 
member of the Association. 
The evidence of record does not establish that the 
members. 
requires outstanding achievements of its 
While the above letters of support indicate that the petitioner's amateur victories allowed her to 
compete professionally at �vents, the evidence of record does not establish that earning the right 
to compete for prize money is indicative of outstanding achievement in professional bodybuilding. 
The petitioner has not provided the official membership criteria for the , the National 
Federation of which the beneficiary is a member. Without that information, we cannot determine 
whether that membership requires outstanding achievements as judged by national or international 
experts. Thus the petitioner has not established that she meets this criterion. 
Based on the foregoing, the petitioner has not satisfied the evidentiary criterion at 8 C.P.R. 
§ 21 4.2( o )(3)(iii)(B)(2). 
Published material in professional or major trade publications or major media about 
the alien, relating to the alien's work in the field for which classification is sought, 
which shall include the title, date, and author of such published material, and any 
necessary translation 
In general, in order for published material to meet the criterion at 8 C.P.R. § 214.2(o)(3)(iii)(B )(3), it 
must be "about" the beneficiary and, as stated in the regulations, be printed in professional or major 
trade publications or major media. To qualify as major media, the publication should have significant 
national or international distribution. 
The director concluded that the petitioner meets this criterion. The petitioner has submitted several 
articles from fitness websites. Two of the articles, on and 
merely report the results of competitions where the beneficiary 
competed. Two additional articles, on ' and 
focus primarily on the petitioner. The petitioner did not submit evidence of the circulation for the 
publications that have covered the beneficiary, as opposed to those publications that merely report the 
results of competitions where she competed. The burden is on the petitioner to establish the 
significance of these sites. 
In addition, we acknowledge that photographs and the beneficiary's bodybuilder profile appear on 
and , Internet websites devoted to bodybuilders. 
The petitioner has provided a letter from the Vice President of Operations at 
Magazine, who states that the publication's website "is the #1 most visited 
bodybuilding website in Canada." USCIS need not rely on the general self-promotional material of 
the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) ajf'd 2009 WL 
604888 (91h Cir. 200 9) (concluding that the AAO did not have to rely on self-serving assertions on the 
cover of a magazine as to the magazine's status as major media). Mr. did not provide monthly 
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page views for the magazine's website. He also states that the magazine has written about the 
beneficiary, but the petitioner did not submit those articles to demonstrate that they are about the 
beneficiary, relating to her work. Mr. provides information that 
Magazine is published six times per year with a print circulation of 20, 000 copies per issue, and that 
the magazine is "distributed in Canada with subscriptions in the United States." The record does not 
contain numbers for other magazines in the field to establish that these numbers are consistent with 
a major trade publication or major media. 
Upon review, the submitted evidence does not meet the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii) (B)(3). Based on the forgoing, we withdraw the director's favorable finding with 
respect to this criterion. 
III. Conclusion 
The petitioner submitted no evidence that the beneficiary has received a major, internationally 
recognized award and the documentation submitted does not meet three of the eight other 
evidentiary criteria specified in the regulation at 8 C.F.R. § 214.2(o)(3)(iii)(B). The evidence 
shows that the beneficiary is a skilled and experienced bodybuilder. Upon review of the totality of 
the evidence submitted, the petitioner has not established that the beneficiary has extraordinary 
ability as a bodybuilder, which has been demonstrated by sustained national or international 
acclaim and that her achievements have been recognized in the field through extensive 
documentation, as required by section 101(a )(15)(0) of the Act. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive. See 
137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). In order to establish eligibility for 0-1 
classification, the petitioner must establish that the beneficiary is "at the very top" of her field of 
endeavor. 8 C.F.R. § 214.2( o )(3)(ii). While we have considered the recommendations submitted, the 
petitioner has not established that the beneficiary's achievements have already risen to this level. The 
petitioner has not presented the type of sustained national or international recognition of 
accomplishments necessary for 0-1 classification. Consequently, the beneficiary is not eligible for 
nonimmigrant classif ication under section 101(a)(15)(0) of the Act. For this reason, the petition 
may not be approved. 
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; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.