dismissed O-1A Case: Horse Training

(b)(6)
Date: fEB 2 8 2013 Office: CALIFORNIA SERVICE CENTER . 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusens Ave., N.W., MS 2090 
Washine:ton. DC 20529-2090 
U.S. Citiz~nship 
and Imnugratton 
Services 
FILE: 
PETITION: .Petition for a Nonimmigrant Worker under Section 101(a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 110l(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find 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. 
! 
If you believe the AAO inappropriately applied the law in ·reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630} The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any niotion 
directly 
with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to. reconsider or reopen. 
Thank you, 
· 'Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an 0-1 alien 
with extraordinary ability in athletics under section 101(a)(15)(0)(i) of the , Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a}(l5)(0)(i). The petitioner breeds, purchases and tra.ins 
Arabian horses. It seeks to employ the beneficiary as an Arabian horse trainer for a period of 
eighteen months. 
The director denied the petition, finding that the petitioner failed to establish that the beneficiary has 
received sustained national or international acclaim and is one of the small percentage who has .risen 
to the very top of his field of endeavor. The director observed that the petitioner had failed to 
establish that the beneficiary meets the criteria for an alien of. extraordinary ability in athletics set 
forth at 8 C.F.R. § 214.2(o)(3)(iii)(A) and (B). 
On appeal, counsel for the petitioner asserts that the petitioner submitted evidence to satisfy three of 
the eight evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). Counsel submits a brief. Counsel has 
not submitted any further evidence on appeal. 1 . . . 
I. The Law 
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 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 his or her 
field of endeavor. 8 C.F.R. § 214.2(o)(3)(ii). 
The regulation at 8 C.F.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.F.R. § 214.2(o)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science, 
education, business or athletics An alien of extraordinary ability in the fields of science, 
education, business, or athletics must demonstrate sustained national or international 
acclaim and recognition for achievements in the field of expertise by providing evidence 
of: 
1 The evidence _which the petitioner submits on appeal has previously been submitted into the record. ' 
(b)(6)
Page 3 
(A) 
(B) 
Receipt of a major, internationally recognized award, such as the Nobel Prize; or · 
At least three of the following forms of documentation: 
(1) Documentation of the alien's receipt of nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(2) 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 or international experts in 
their disciplines or fields; 
(3) 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; 
( 4) Evidence ofthe alien's participation on a panel, or individually as a judge 
of the work of others in the same or in an allied field of specialization to 
that for which classification is sought; · · 
(5) Evidence of the alien's original scientific, scholarly, or business-related 
contri~utions of major significance in the field; 
(6) Evidence of the alien's authorship of scholarly articles in the field, in 
professional journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential 
· capacity for organizations and establishments that· have a distinguished 
reputation; 
· (8) Evidence that alien-has either commanded a high salary or will command 
a high salary or other remuneration for services, evidenced by contracts 
or other reliable evidence. 
(C) If the criteria in paragraph (o)(3)(iii) 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. 
. . . . 
Additionally, the regulation at 8 C.F.R. § 214.2(o)(2)(iii) provides: 
The evidence submitted with an 0 petition 
shall conform to the following: 
(A) Affidavits, contracts, awards, an9 similar documentation must reflect the nature of 
the .. alien's achievement and be executed by an officer or responsible person 
(b)(6)
Page4 
employed by the institution, finn, establishment, or organization where the work. 
was performed.· · 
(B) . Affidavits written by present or former employers or recognized experts certifying 
to the recognition and extraordinary ability ... shall specifically describe the 
alien's recognition and ability or achievement in factual terms and set forth the 
expertise of the affiant and the manner in which the affiant acquired such 
information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent 
upon the quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The 
mere fact that the petitioner has submitted evidence relating to three of the criteri~ as required by the 
regulation does not necessarily establish that the alien is eligible for 0~1 classification. See Fed Reg. · 
41820. . 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach 
set forth in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010). Similar to the regulations governing this nonimmigrant 
classification, the regulations reviewed by the Kazarian court require the petitioner to submit evidence 
pertaining to at' least three out of ten alternative criteria in order to establish a beneficiary's eligibility as 
an alien with extraordinary ability. Cf 8 C.F.R. § 204.5(h)(3). 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 evidentiary ·criterion. The court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet two of the criteria, those concerns 
should have been raised in a subsequent "fmal merits determination." Id 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)." /d. at 1122 (citing to 
8 C.F.R. §204.5(h)(3)). Thus, Kazarian sets forth a two-part approach where the evidence is first 
counted and then, if qualifying under at least three criteria, considered in the context of a merits 
determination. 
The AAO finds the Kazarian court's two ~part approach to be appropriate for evaluating the regulatory 
criteria set forth for 0-1 nonimmigrant petitions for aiiens of extraordinary ability at 8 C.F.R. 
§ 214.2(o)(3)(iii), (iv) and (v). Therefore, in reviewing Service Center decisions, the AAO will apply 
the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new 
analysis if the director reached his or her conclusion by using a one-step analysis rather than the two­
step analysis dictated by the Kazarian court. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO reviews appeals on a de novo basis). 
In this matter, the AAO has reviewed the evidence under the plain language requirements of each criterion 
claimed. ~ the petitioner has failed to submit evidence that satisfies three of the evidentiary criteria at 
(b)(6)PageS 
8 C.F.R. § 214.2( o )(3)(iv )(B), the proper conClusion is that the petitioner has failed "to satisfy t.he regulatory 
requirement of three types of evidence. · · 
It Discussion 
The record · consists of a petition with supporting documentation, a request for additional evidence 
(RFE) and the petitioner's reply, the director's decision, an appeal and a brief. The beneficiary in this 
case is a native and citizen ofBrazil. The record shows that the beneficiary has trained, managed and 
shown horses in competitions in · the United States from 2005 through 2010. The record also 
indicates that from 1991 to 1997 the beneficiary was involved in training and/or showing horses in 
Europe. The petitioner seeks to classify the beneficiary as an alien with extraordinary ability as a 
horse trainer. ' 
In denying the petition, the director found that the petitioner had not established that the beneficiary 
met at least three of the evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). The director; also 
observed that there was no evidence that the beneficiary has received_ a major, internationally 
recognized award equivalent to that listed at 8 C.F.R. § 214.2(o)(3)(iii)(A). 
Upon review and for the reasons discussed herein, the petitioner has not established that the 
beneficiary is fully qualified as an alien with extraordinary 
ability in athletics. 
A. Evidentiary Criteria 
At the outset, it must be noted that 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 documentation" of the alien's achievements. See section 
101(a)(15)(0)(i) of the Act. 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has 
received a major, internationally recognized award pursuant to 8 C.F.R. § 214.2(o)(3)(iii)(A), then it 
will meet its burden of proof with respect to the beneficiary's eligibility for 0-1 classification. The 
regulations cite to the Nobel Prize as an example of a major award. /d. Given that the regulations 
specifically cite to the Nobel Prize as an example of a one-time achievement, examples of one-time 
awards which enjoy major, international recognition may include the Pulitzer Prize,· the Academy 
Award, and (most relevant for athletics) an Olympic Medal. The director determined that the 
petitioner submitted no evidence to meet this criterion, and the petitioner has raised no objection to 
this finding. · 
As there is no evidence that the beneficiary has received a major, internationally recognized award, 
the petitioner must establish the beneficiary's eligibility under at least three of the eight criteria set 
forth at 8 C.F.R. § 214.2(o)(3)(iii)(B). The petitioner has submitted evidence pertaining t9 the 
following criteria: 
Documentation of the alien's receipt of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor. 
(b)(6)Page 6 
To meet the criterion at 8 C.F.R. § 214.2(o)(3)(iii)(B)(l), the petitioner must submit evidence that 
the beneficiary has received nationally or internationally recognized prizes or awards for excellence 
in the field. 
The petitioner asserts that it cannot submit evidence that the beneficiary has received nationally or 
internationally recognized prizes or awards for excellence in the field, since counsel asserts that in 
equestrian competitions only the names of the winning horses are printed on awards instead of the 
rider or trainer. Instead, the peti.tioner has submitted testimonials from various individuals who 
specialize in Arabian horses who state that from 2005 through 2010, horses the beneficiary has 
"trained and/or managed" or shown have won numerous awards in the United States, including 
awards at the annual show (also referred to as the 
), the and regional competitions. 
The letters also indicate that from 199-1 to 1997 the beneficiary trained and/or showed horses in 
Europe that won several awards. 
However, the AAO notes the petitioner has not submitted documentary evidence to establish that 
horses the beneficiary has trained have won awards, or other independent corroboration of the awards. 
While the AAO does not question the credibility of the testimonial letters that list awards won by horses 
the beneficiary has trained, the petitioner has not explained why the AAO should accept the letters' 
assertions of the fact of the awards in lieu of the awards themselves, as required by the plain language of 
the criterion. Nor has the petitioner asserted that documentary evidence of such awards i~ not 
available. The third-party statements of witnesses regarding such awards are insufficient to me~t this 
criterion. 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. Comm'r 1972)). In 
addition, the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); .Matter of Laureano, 19 I&N Dec. l (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In addition, the petitioner has not submitted 
evidence to establish that the beneficiary has trained the individual horses listed as having won the 
awards. 
Further, the petitioner asserts that a student handler and horse, both trained by the beneficiary at the 
petitioning entity, won the .2 In a case where 
an alien has achieved recent national or international · acclaim as an athlete and has sustained that 
acclaim in the field of coaching at a national level, we can consider the totality of the evidence as 
establishing an overall pattern of sustained acclaim and extraordinary ability · such that we can 
conclude that coaching is within the petitioner's ·area of expertise. Upon review the AAO finds 
insufficient evidence to establish that the beneficiary has ·won nationally or internationally 
recognized awards or prizes as a horse trainer, or that he has students that have won nationally or 
internationally recognized prizes or awards. The evidence shows that the beneficiary has been 
regionally r~cognized as a horse trainer, but, overall, the . record demonstrates that the beneficiary 
does not train or show horses competing at the highest level. For example, there is no evidence of 
2It appears that the student was the son of. the owner of the petitioning entity. 
(b)(6)Page 7 
any national or international prize or award issued .to him based oil his accomplishments as a horse 
trainer or instructor. 
While the evidence indicates that the beneficiary has trained a· student competing successfully ~t the 
junior level, even had the petitioner submitted copies of the award, a national award received by a 
student competing at the junior level would not carry the same evidentiary weight as an internat.ional 
award received by a competitor at the adult, professional level, without some additional explanation 
as to how the sport is governed at the junior level. 
In order to establish that the beneficiary qualifies as an alien of extraordinary ability in athletics, the 
petitioner must show evidence of sustained national or international acclaim and recognition that 
places him among the small percentage at the very top of the profession. The petitioner has not 
established that awards and prizes received by horses the beneficiary has trained to date place him 
among that small percentage of the sport's most established and successful trainers. The petitioner 
has not established that the beneficiary meets this criterion. 
In light of the above, the petitioner has not established that the beneficiary satisfies this criterion. 
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 establish that the . beneficiary meets the second criterion, at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(ii), the petitioner must document 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. The petitioner 
does not claim that the beneficiary can satisfy this criterion. 
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 
The director determined that the beneficiary meets this criterion as an athletic competitor. The AAO 
disagrees and withdraws the director's finding. . 
The petitioner submitted one article specifically about the beneficiary, contained in the August 1995 
issue of sununarizing the beneficiary's horse training career. However, the plain 
language of the regulation requires that the published material shall include the title, date, and author of 
the material. ·However, this article is in the nature of a press release that, while including a general date 
the article was written, does not include the author of the material. As a result, this article cannot be 
considered as qualifying evidence that meets 
the plain language requirements of the criterion? 
3Even if the author of that article had been included, a singl~ article published 15 years prior to filing does.not establish that 
the beneficiary has achieved sustained acclaim and is insufficient to satisfy this criterion. 
(b)(6)
. ' 
Page 8 
The petitioner also submitted news items and captioned photographs briefly mentioning the beneficiary 
in the following publications: the August 2Q08 issue of a post on 
_ · accessed November 27, 2010; the of a 
publication of the the beneficiary's previous employer; the August 2009 issue of 
the August 2010 issue of - _ the Augilst 2005 issue of 
. and, the April 23, 2003 issue of the _ As stated preciously, the 
plain language of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(C) requires that the published material shall 
include the title, date, and author of the material. However, except for the article in the 
all these items are also in the nature of press releases that, while including a general date the article was 
written, do not include the author of the material. As a result, these published materials cannot be 
considered as qualifying evidence that meets the plain language requirements of the criterion. 
Regarding the article mentioning the beneficiary in . the April 23, 2003 issue of the 
although the article notes that at that time the beneficiary was the manager and head trainer fqr his 
previous employer, the article is about 
involvement in Arabian horse breeding. The article is not specifically "about" the beneficiary, as 
required by the plain language of the criterion. 
The petitioner submitted evidence that the. beneficiary's picture, along with a hor~e named 
appeared on a pop-up for the website accessed ori November 27, 
2010. The pop-up reported that the beneficiary was the handler for the Egyptian-Arabian show horse 
named which won the . · . The regulation clearly requires a written article 
about the beneficiary, in light of the petitioner's burden to submit the title, date, ·and author of such 
published material. 
In light of the above, the petitioner has not established that the beneficiary satisfies this criterion. 
Evidence of the alien's participation on a panel, or individually as a judge of the work of 
others in the same or in an allied field of specialization to that for which classification is 
sought 
To meet the fourth criterion at 8 C.F.R.§ 2i4.2(o)(3)(iii)(B)(4), the petitioner must submit evidence of 
the alien's participation on a panel, or individually as a judge of the work of others in the same or in an 
~lied field of specialization to that for which classification is sought. The petitioner does not claim that 
the beneficiary can satisfy this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The fifth criterion, at 8 C.P.R.§ 214.2(o)(3)(iii)(B)(5), requires the petitioner to submit evidence of the 
alien's original scientific, scholarly, or business-related contributions of major significance in the field. 
Whereas other regulatory passages refer to "extraordinary ability in the fields of science, education, 
business, or athletics," 8 C.F.R. § 214.2(o)(3)(iii)(B)(5) refers to "the alien's original scientific, 
scholarly, or business-related contributions." · The omission of "athletic contributions" is a realistic 
reflection of the nature of athletic competition. Winning a competition is not an "original 
(b)(6)
Page 9 
contribution;" it is expected that any given athletic event will have a winning athlete or team that 
outscores or outperforms rival competitors. Similarly, possessing a high level of the skills needed to 
succeed in a particular sport is generally a matter of degree, rather than an "original contribution" to 
the sport. Therefore, attestations regarding the beneficiary's talent, skills and success will not satisfY 
8 C.P.R.§ 214.2(o)(3)(iii)(B)(5) as evidence of the beneficiary's original contributions. Competitive 
success is already taken into account by 8 C.P.R. § ~14.2(o)(3)(iii)(B){l), pertaining to prizes and 
awards, and 8 C.P.R. § 214.2(o)(3)(iii)(B)(J) instructs USCIS to take into account any major media 
attention that an athlete may earn by standing out from others in a particular sport. · 
The director 
concluded that, while some of the submitted testimonial letters indicate that the beneficiary 
is an asset to the industry, there is no specific clai.n1 that he has made a significant, original contribution. 
Neither counsel nor the petitioner challenges that conclusion on appeal. Accordingly, the petitioner has 
abandoned that claim. See Sepulveda v. US. Att'y Gen., 401 P.3d 1226, 1228 n. 2 (11th Cir;2005); 
Hristov v. Roark, No. 09~CV-2731, 2011 WL 4711885 at *9 (E.D. N.Y. Sept. 30, 2011). 
Nevertheless, upon review, the AAO concurs with the director's conclusion. While the respect the 
beneficiary has received from people he knows in the industry ' is commendable, and ~e is clearly 
highly regarded as a person and as a trainer, the testimonials do not establish that the beneficiary has 
made a significant contribution to .the field. · 
The petitioner did not submit qualifying evidence that meets the plain language requirements of this 
criterion, set forth at 8 C.P.R.§ 214.2(o)(3)(iii)(B)(5). 
Evidence of the alien's authorship of scholarly articles in the field, in profess_ional journals, or 
other major media 
The petitioner has not submitted evidence to meet the sixth criterion at 8 C.P.R. 214.2(o)(3)(iii)(B)(6). 
-
Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation 
The petitioner claims that the beneficiary can meet the seventh criterion, which requires the petitioner to 
submit evidence that the beneficiary · has been employed in a critical or essential capacity for 
organizations and establishments that have distinguished reputations. 8 C.P.R. 214.2( o )(3)(iii)(B)(7). 
The director determined that the petitioner submitted evidence to satisfy this criterion, but did not 
discuss the basis of this fmding. Considering the evidence and explanation provided in response to the 
RFE, it appears that the director determined that the beneficiary was employed in a critical or essential 
capacity for , based on his leadership roles as "head trainer" and "manager." 
The AAO agrees that the petitioner has submitted evidence to meet the plain language of this criterion. 
The petitioner documented some of the beneficiary's prior employment. The petitioner submitted a 
letter from the owner of in from January 1995 to 
(b)(6)
Page 10 
December 1997 as ·a horse trainer. The petitioner has not submitted evidence to establish that 
or her organization enjoys a distinguished reputation as a horse breeder or trainer .
4 
The petitioner also submitted two letters from . _ stating the beneficiary worked for his 
in _ as manager and head trainer beginning in December 2000. 
Although Mr. does not state for how long the beneficiary was employed by him, it appears the 
beneficiary worked for Mr. until at least April 23, 2003, the date of an article in the 
, referred to above, which mentions the beneficiary's employment with Mr. 
Regarding · the reputation of the petitioner submitted · 
owner/breeder reports from the showing he has bred 
648 horses as of January 2011. The petitioner has also submitted the purebred horse display records for 
several horses owned and/or bred by showing that two of his horses have won national 
and/or international awards. Further, the petitioner submitted an article from 
~~~~~ in ~ 
awarded a lifetime achievement awaid for his service as a breeder of Arabian horses. The AAO 
acknowledges that Mr.. enjoys a distinguished reputation in the horse breeding industry. 
The AAO finds the petitionerhas established th~ beneficiary's prior essentiality to and employment 
with . at his · an organization that enjoys a distinguished 
reputation. Therefore, the AAO agrees . with the director that the petitioner has established that the 
beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
. for services, in relation to· others in the field. · 
· In order to satisfy the eighth and final criterion, the petitioner is required to submit evidence that the 
alien has either commanded a high salary or will command a high salary or other remuneration for 
services, evidenced by contracts or other reliable evidence . 8 C.F.R. 214.2(o)(3)(iii)(B)(8). 
The director concluded that the petitioner did not submit evidence that the alien has either commanded 
a high salary or will command a high salary or other remuneration for services. Neither counsel nor the 
petitioner challenges that conclusion on appeal. Accordingly, the petitioner has abandoned that claim. 
See Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005); Hristov v. Roark, No. 09-
CV-2731, 2011 WL4711885 at *9 (E:D. N.Y. Sept. 30, 2011). 
Nevertheless, upon review, the AAO concurs w~th the director's conclusion. ·The petitioner did not 
provide evidence of the beneficiary's prior earnings. The petition indicates that the beneficiary 
would receive annual compensation of $36,000, which ·includes room 'and board. The petitioner's 
December 1, 2010 letter addressed to USCIS indicate~ the beneficiary will also receive "sale 
commission fees on horses [the beneficiary] directly markets and sal~s (sic) on behalf of [the 
petitioner.] The .petitioner did not provide a contract stipulating the percentage of sales commission 
fees that would go to the beneficiary, nor did it provide any evi~ence that would assist USCIS in 
4 
The AAO notes that 's December I, 2010 Jette( and that of Ms. use almost identical 
language in describing the beneficiary's employment duties as their respective organizations. 
(b)(6)
Page 11 
comparing the proffered salary to that offered to other trainers/riders in the United States. Therefore, 
the AAO cannot conclude that the beneficiary would command a high salary or other remuneration 
in the United States. 
The petitioner did not submit qualifying evidence that meets the plain language requirements of this 
criterion, set forth at 8 C.F.R. § 214.2( o )(3)(iii)(B)(8). 
B. Comparable Evidence 
The regulation at 8 C.F.R. § 214.2(o)(3)(iii) provides· that an alien of extraordinary ability in the fields 
of science, education, business or athletics must demonstrate sustained national or international acelaim 
and recognition for achievements in the field of expertise by providing evidence of receipt of a major 
internationally recognized award pursuant to 8 C.F.R. § 214.2(o)(3)(iii)(A), or by submitting evidence 
to satisfy at least three of the eight forms of documentation set forth at 8 C.F.R. § 214.2(o)(3)(iii)(B). 
We further acknowledge that the regulation at 8C.F.R. § 214.2(o)(3)(iii)(C) provides "[i]fthe criteria in 
paragraph ( o )(3)(iii) of the section do not readily apply to the beneficiary's occupation, the petitioner 
may submit comparable evidence in order to establish the beneficiary's eligibility." It is clear froin the 
use of the word "must" in 8 C.F.R. § 214.2(o)(3)(iii) that the rule, not the exception, is that the 
petitioner is required to submit evidence to meet at least three of the regulatory criteria. Thus, it is the 
petitioner's burden to explain why the regulatory criteria are not readily applicable to the beneficiary's 
occupation and how the evidence submitted is "comparable" to the objective evidence required at 
8 C.F.R. § 214.2(o)(3)(iii)(B)(l) through (8). 
At the time of filing, the petitioner claimed eligibility under the "comparable evidence" regulation, in 
addition to claiming eligibility under the criteria at 8 C.F.R. §§ 214.2(o)(3)(iii)(B)(J), (3), (5), (7) 
and (8). The director did,not specifically address the beneficiary's eligibility under the "comparable 
evidence" regulation. The director considered the petitioner's testimonial evidence with respect to 
the beneficiary's athletic contributions to his field under the eligibility criteria at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(5). Counsel did not address the issue of comparable evidence on appeal.. 
The regulatory language precludes the co11sideration of comparable evidence in this case, as there is 
no indication that eligibility for 0-1 classification in the beneficiary's occupation as a horse trainer 
cannot be established by submitting documentation relevant to at least three of the eight criteria at 
8 C.F.R. § 214.2(o)(3)(iii)(B). In fact, as previously indicated, at filing counsel mentioned evidence 
that specifically addresses five of the eight criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). An inability to 
meet a criterion, however, is not necessarily evidence that the criterion does not apply to the 
beneficiary's occupation. Where an alien is simply unable to meet or submit documentary evidence 
of three of these criteria, the plain language of the regulation at 8 C.F.R. § 214.2(o)(3)(iii)(C) does 
not allow for the submission of comparable .evidence. 
C. Summary 
The record does not establish that the beneficiary is an alien of extraordinary ability in athletics. The 
petitioner failed to establish that the beneficiary hasreceived a major, internationally recognized 
award or that he satisfies at least three of the evidentiary criteria . specified in the regulation at 8 
C.F.R. § 214.2(o)(3)(iii)(B): The petitioner failed to explain why the regulatory criteria are not readily 
(b)(6)
•• I ' • 
Page 12 
applicable to the beneficiary;s occupation, such that the.petitioner .may submit comparable evidence in 
order to establish the beneficiary'& eligibility under 8 C.F.R. § 214.2(o)(3)(iii)(C). 
III. Conclusion 
The record does not establish that the beneficiary is ari alien of extraordinary ability in athletics 
whose achievements have been recognized in the field through extensive documentation, as required 
by section 101(a)(15)(0)(i) of the Act. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian .opinion, the next step would be a consideration of t~e evidence in the 
context of a final merits determination. However, as discussed above, the petitioner failed to establish · 
eligibility under at least three of the evidentiary criteria specified in the regulation at 8 C.P.R. 
§ 214.2(o)(3)(iii)(B). The AAO will not conduct a final merits determination. · 
For the above-stated reasons, the petitioner has not established the beneficiary's eligibility 
pursuant 
to the regulatory criteria at 8 C.P.R.§ 214.2(o)(3)(iii)(B), and the peti_tion may not be approved. 5 
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 not been met. 
ORDER: The appeal is dismissed. 
5The AAO maintains de novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding on 
motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits determination as the 
official who made the last decision in this matter. 8 C.F.R. § 103.S(a)(1)(ii). See also Section 103(a)(1) of the Act; 
Section 204(b) of the Act; DHS Delegation Number 0150.·1 (effective March 1; 2003); 8 CF.~. § 2.1 (2003); 8 C .F.R. § 
103.1(t)(3)(iii)(2003); Matter of Aurelio, 19 .I & N Dec. 458, 460 (BIA 1987)(holding that legacy INS, now USCIS, is 
the sole authority with the jurisdiction to decide visa petitions).