dismissed O-1A Case: Martial Arts

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InvasionofP«sonal privacy
PUBLfCCOpy
u.s.Department ofHomelaDd security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship .
and Immigration
Services
FILE: LIN 0526251156 Office: NEBRASKA SERVICE CENTER Date: NOV 0 7 2007
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(O)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(15)(O)(i)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
/
~/S=a
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 0526251156
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office on appeal. The appeal will be dismissed.
The petitioner is a martial arts training studio. The petitioner seeks to extend the 0-1 nonimmigrant classification
of the beneficiary, as an alien with extraordinary ability under section 1OI(a)(l5XO)(i) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § l101(a)(l5XO)(i), in order to employ him temporarily in the United States
as a Taekwondo coach for a period of one year at an annual salary of$31 ,200.
The director denied the petition, fmding 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.
On appeal, the petitioner submits a brief from counsel and new exhibits.
Section 101(a)(l5)(OXi) ofthe 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 beenrecognized in the field through extensive documentation, and who seeks
to enter the United States to continue work in the area of extraordinary ability.
The regulation at 8 C.F.R. § 214.2(oX3Xii) defines "extraordinary ability" in the field of science, education,
business, or athletics as "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."
Pursuant to 8 C.F.R. § 214.2(oX3Xiii), 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 either:
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or
(B) 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 national 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;
LIN 0526251156
Page 3
(4) 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;
(5) Evidence of the alien's original scientific, scholarly, or business-related contributions
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 establislunents that have a distinguished reputation;
(8) 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.
In a cover letter accompanying the initial submission, counsel claimed that much of the petitioner's initial
documentation qualifies as both "Evidence of Major Internationally Recognized and Lesser Nationally or
Internationally Recognized Prizes or Awards." Counsel did not specify which of these exhibits (some of
which are not prizes or awards at all) constitute a major internationally recognized award (or awards). The
materials so described consist of a job offer letter from the petitioner; a certificate showing that the
beneficiary has attained the fifth Dan; and materials relating to medals that the beneficiary has won.
The record indicates that attaining the fifth Dan in Taekwondo is not an award, but rather the foreseeable
outcome of a standard process by which Taekwondo practitioners advance from one Dan level to the next.
The evidence shows that such advancement is a promotion within the ranks of the sport, but does not establish
that the fifth Dan is a major, internationally recognized award pursuant to 8 C.F.R. § 214.2(0)(3)(iii)(A) or a
nationally or internationally recognized prize or award for excellence in the field pursuant to 8 C.F.R.
§ 214.2(0)(3)(iii)(B)(l).
Counsel claimed that the beneficiary "from 1984 through 1996, was one of the best Taekwondo players in the
world in his weight class. In 1991 through 1995, he was clearly the best in the world in his weight class." A
"Certificate of Taekwondo Experience" from the Korea Taekwondo Association lists medals that the
beneficiary won between 1984 and 1996, including a gold medal at the 1991 Taekwondo World Cup. The
certificate is dated July 8, 2002, six years after the beneficiary won his last medal in June 1996.
While a number of the described medals appear to be significant, the petitioner has not shown that any of
them rise to the level of a major, internationally recognized award, pursuant to 8 C.F.R. § 214.2(0)(3)(iii)(A).
Furthermore, the petitioner seeks to classify the beneficiary not as a competitive athlete, but as a coach. The
beneficiary's past achievements, more than a decade ago, as a competitor do not establish a presumption of
sustained acclaim and extraordinary ability as a coach. See Lee v. Ziglar, 237 F.Supp.2d 914 (N.D. ill. 2002).
Nonetheless, given the nexus between competing and coaching, in a case where an alien has clearly achieved
LIN 0526251156
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•
national or international acclaim as an athlete and has sustained that acclaim in the field of coaching at a
national or international level, Citizenship and Immigration Services (CIS) may consider the totality of the
evidence as establishing an overall pattern of sustained acclaim and extraordinary ability. In this case,
however, the record does not establish that whatever acclaim the beneficiary may have achieved in the past
has been sustained in his subsequent work as a coach.
The petitioner submits "Certificates of Taekwondo Experience" relating to several other athletes. Counsel
claimed that these individuals were the beneficiary's students. The certificates do not identify the athletes'
coach or coaches. The petitioner has not establishedthat the beneficiary coached these athletes. Even asswning
that the beneficiary had coached them at some point, the record does not show when the beneficiary began
coaching them. The certificates show medals going back as far as 1992, and there is no evidence that the
beneficiary was a coach before 1995. Therefore, it appears that at least some of these athletes, and possibly all
of them, were winning competitions before the beneficiary began to coach them. Without evidence to show
when the beneficiary began coaching these athletes, there is no way to detennine how their performance
changed or improved wtder the beneficiary's tutelage compared with their earlier efforts wtder other coaches.
The beneficiary also received several certificates for his work as a coach, some of which do little more than
verify past coaching experience. Counsel described only one of these certificates in any detail. Regarding a
1997 "Certificate of Honor" from the World Tae Kwon Do Coaches' Society, counsel claimed: "This is
awarded to only one coach each year. The honor goes to the coach of the best perfonning Taekwondo team
where the players being coached perform well and receive the highest quality of awards." The body of the
certificate in question reads, in its entirety:
The World Tae Kwon Do Coaches' Society
Recognized by the World Tae Kwon Do Federation
Certificate
of
Honor
presented to
[the beneficiary]
in recognition of
your dedicated service and outstanding
contribution to the development ofTae Kwon Do
The beneficiary's name is handwritten into a blank space on the document. The record contains no
documentary evidence to support counsel's claims regarding the uniqueness or importance of the certificate.
Other certificates are from local organizations, with no demonstrated national or international recognition. A
number of these certificates contain the phrase "dedicated service and outstanding contribution," suggesting
that the phrase is not rarely encountered on such documents. A translated "Certificate of Superior
Leadership" issued March 25, 1997 by the Seoul Metropolitan Taekwondo Association reads:
LIN 0526251156
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This Certificate of Superior Leadership is presented in recognition of your thorough sense of
mission and responsibilityfor accurate instructionwhich provided outstanding contribution to
the development of Taekwondo. Your dedicated leadership is exemplified to the other
leaders, especially during the Taekwondo Individual Competition and Taekwondo Team
Competition of and [sic] 17th Seoul MetropolitanMinistry of Education.
On December 19, 2005, the director issued a request for evidence (RFE), stating that "the beneficiary's
achievements as a taekwondo athlete, while clearly noteworthy, are not relevant to the issue at hand, which is
the beneficiary's accomplishments as a taekwondo coach." The director stated that the petitioner's initial
submission omitted significant evidence, such as "evidence establishing that the beneficiary served as coach
for [the named] athletes."
The petitioner's response to the RFE consisted almost entirely of witness letters rather than first-hand
documentation. Some of the petitioner's current students and their parents offer letters; the only letter to
include evidence is from who submitsphotographs from a state-level competition in Oregon
in 2005. Witnesses in Korea attest, in relatively general terms, to the beneficiary's success in that country,
but the petitioner's RFE response does not show that the beneficiary was the coach for the previously named
athletes at the time they won their various medals.
.President of the World Taekwondo Federation (WfF), stated that the beneficiary has
coached at "high schools with outstanding Taekwondo teams." WTF Chief Clerk stated that
the beneficiary served as a Technical Advisor to the National Taekwondo Teams of the Philippines and
Mexico in 2001.
Grand Master _ofSunrise Tae Kwon Do, Clackamas, Oregon, stated: "To my knowledge, the
Korean superio~award is given to only a few, one to two coaches a year. The significance of the
award is highly recognized." The RFE response, however, shows that the beneficiary received three such
certificates in the space of fifteen months. irector of the Seoul City Taekwondo
Association, stated "Generally, only one or two certificates are issued after any major competition" (emphasis
added). We note that the awarding entity is not any national or international organization, but rather a local
(city) association. The petitioner has not established that the certificates are recognized nationally or
internationally.
Most of counsel's original arguments concern the beneficiary's documented and claimed awards. The only
other regulatory criterion to which counsel referred directly was 8 C.F.R. § 214.2(o)(3)(iii)(B)(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 national or international experts
in their disciplines or fields. Counsel claimed that the beneficiary's "Dan Certificate" from Kukkiwon World
Taekwondo Headquarters, showing that the beneficiary attained the fifth Dan in 2004, is "proof of
membership [in an] association which requires outstanding achievement." Counsel did not identifY the
"association" in which the beneficiary purportedly became a member by virtue ofhis fifth Dan ranking.
Grand Master _explained the Dan system:
LIN 0526251156
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In taekwondo there are nine Dans. Each level of black belt carries responsibilities and
indicates levels of achievement. In order to be an international level coach it is necessary for
the coach to have obtained the level of at least fourth Dan. One achieves fifth Dan after
having performed successfully in major international competitions as a coach....
Although the fifth Dan is not rare there are only eight persons in the greater Portland, Oregon
area who have achieved that level
(Emphasis added). The record contains no corroboration, such as official publications from a governing body
of Taekwondo, to confirm the claim that one must coach at "major international competitions" to achieve the
fifth Dan. The beneficiary's own "Dan Certificate" does not mention coaching at all. Rather, it reads: "This
is to certify that the person named above has attained the Dan at a test conducted in accordance with the rules
and regulations of the Kukkiwon for promotion test." Although this certificate shows that "rules and
regulations" exist pertaining to the "promotion test," the petitioner has not submitted them.
The director, in the RFE, repeated the full list of regulatory criteria, but the petitioner, in the RFE response,
did not claim to have fulfIlled any additional criteria not claimed previously. Therefore, at the time of the
director's decision, the petitioner had claimed to have satisfied only two of the eight criteria at 8 C.F.R.
§ 214.2(oX3)(iii)(B), in addition to the claim of a major, internationally recognized (but unidentified) award.
The director denied the petition on August 25, 2006. The director stated that the petitioner had satisfied
8 C.F.R. § 214.2(0)(3)(iii)(B)(l) because "[t]he evidence indicates that the beneficiary has won several
competitions that are recognized, at least on a national level." The director acknowledged that acclaim as an
athlete does not necessarily translate into acclaim as a coach, but the director determined that the beneficiary
has coached at a sufficiently high level to demonstrate a relationship between the beneficiary's achievements
as an athlete and, later, as a coach. While granting the beneficiary's receipt of awards, the director did not
find that the beneficiary had submitted sufficient evidence under any of the remaining regulatory criteria.
Upon consideration, the AAO concurs with the director's conclusions.
Counsel devotes a considerable portion of the appellate brief to the argument that the beneficiary has coached
award-winning athletes. The director acknowledged that the petitioner had satisfied the criterion relating to
prizes (although, as we have discussed, much of this evidence is weaker than counsel has claimed), so
counsel's expansion on this point adds nothing of substance to the record. The director did not find that the
beneficiary had won a major, internationally recognized award. While counsel initially claimed that the'
beneficiary had won such an award, counsel never identified the award, much less established its significance.
On appeal, counsel repeats the assertion that the beneficiary's fifth Dan certificate demonstrates the
beneficiary's "membership in associations in the field ... which require outstanding achievements of their
members, as judged by recognized national or international experts." Counsel states:
[The beneficiary's] ability to ascend to the elite level of a 5th Dan holder within the World
Taekwondo Association is essentially a Sth Dan membership position within the World
LIN 0526251156
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Taekwondo Association. One cannot become such a member without having accomplished
outstanding achievements, and only can do so after other recognized Taekwondo masters
adjudicate the candidate's application.
We do not share counsel's opinion that a fifth Dan ranking "is essentially a 51b Dan membership." Counsel's
contentions are not corroborated by any objective documentary evidence. As noted above, the beneficiary's
own Dan Certificate states only that the beneficiary passed a "promotion test." The petitioner has chosen not
to submit a copy of Kukkiwon's "rules and regulations" regarding the promotion test, and there is no
documentary support for counsel's claims regarding the beneficiary's fifth Dan "membership." The
unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2
(BIA 1988); Matter ofLaureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec.
503, 506 (BIA 1980). Also, membership in one association would not satisfy 8 C.F.R.
§ 214.2(o)(3)(iii)(B)(2), which requires "[d]ocumentation of the alien's membership in associations in the
field," rather than membership in one association.
For the first time, counsel asserts on appeal that the beneficiary meets 8 C.F.R. § 214.2(o)(3)(iii)(B)(4),
evidence of the alien's participation on a panel, or individually, as ajudge of the work of others in the same or
in an allied field of specialization to that for which classification is sought. Prior to the appeal, even after the
director mentioned judging in the RFE, the petitioner had never claimed that the beneficiary satisfied this
criterion. The director concluded that any ''judging'' that the beneficiary performs is integral to his basic job
duties, and not indicative of sustained acclaim or extraordinary ability.
Counsel states that the beneficiary qualifies as a judge because "[a]s a 51b Dan holder, [the beneficiary] has the
power to judge 41b Dan applicants ... under World Taekwondo Association, Inc. rules." This argument
presupposes that every fifth Dan holder qualifies as a judge, in addition to the prior argument that every fifth
Dan holder is a member of an association which requires outstanding achievements of its members.
However, one achievement cannot serve to meet two (or more) criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). The
regulation permits a beneficiary to establish eligibility through a single achievement in only one
circumstance: receipt of a major, internationally recognized award, such as the Nobel Prize. 8 C.F.R.
§ 214.2(o)(3)(iii)(A).
The petitioner has provided little information about the "promotion test" to the fifth Dan, apart from these
assertions from
In order for one . . . to be promoted to the next level Dan, one must meet time passage and
age limit requirements as well as successfully demonstrate one's Taekwondo skills,
techniques, form, sparring and breaking abilities during the test. ...
There are a total of nine Dans in Taekwondo....
From 4th to Sib, one must be at least 25 years of age and must wait four years.
LIN 0526251156
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The requirements outlined above do not readily suggest that attaining the middle level of nine Dan levels is
indicative of sustained national or international acclaim. This information also seems to conflict with ....
••• own prior assertion that "[o]ne achieves fifth Dan after having performed successfully in major
international ~s a coach." Given these somewhat inconsistent assertions, we cannot grant the
assertions o~ solicited express~ort this petition, the same evidentiary weight as
objective, published regulations maintained b~or other applicable governing bodies.
Also in the area of judging, the petitioner submits a list of five "Northwest regional competitions" that the
beneficiary is said to have judged between May 2003 and March 2006. The record contains no documentary
evidence of the beneficiary's judging at these competitions, only a letter from an individual who "personally
witnessed" the beneficiary acting as a judge. Two of the five competitions took place after the filing date, and
even if the beneficiary's judging at those competitions was documented, it could not be considered. The
petitioner must establish the beneficiary's eligibility at the time of filing. A visa petition may not be approved
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Conun. 1978). Furthermore, these regional events, involving
"athletes from Washington and Oregon," are by definition not national or international in scope, and therefore
there is no basis to conclude that the beneficiary's activity in these events demonstrates national or
international (as opposed to regional) acclaim.
On appeal, counsel argues that the director "should have given deference to the prior grant of 0-1 status" to the
beneficiary. Counsel cites a memorandum from William R. Yates, Associate Director of Operations, The
Significance ofa Prior CIS Approval ofa Nonimmigrant Petition in the Context ofa Subsequent Determination
Regarding Eligibility for Extension ofPetition Validity (April 23, 2004). Counsel acknowledges that, according
to that memorandum, "[t]here are certain circumstances under which deference need not be given. However,
none of those circumstances are present in this case." We do not agree with this assessment. One of the
circumstances is "material error with regard to the previous petition approval." The AAO does not have before
it the record of proceeding for the previous 0-1 petition, but the evidence submitted in support of the present
petition does not meet the minimum threshold for eligibility. If the prior petition included essentially the same
evidence, then that petition was approved in error. Even if the prior petition included sufficient evidence, the
petitioner chose not to incorporate that evidence into its new filing. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Conun. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485
U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Phi/harmonic Orchestra v. INS, 2000 WL 282785 at *3 (E.D. La. Mar. 15,2000), affd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 534 U.S. 819 (2001).
LIN 0526251156
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The petitioner initially articulated claims regarding only two of the eight regulatory criteria: 8 C.F.R.
§ 214.2(0)(3)(iii)(B)(l), relating to the alien's receipt of nationally or internationally recognized prizes or awards
for excellence in the field of endeavor, and 8 C.F.R. § 214.2(0)(3)(iii)(B)(2), pertaining to the alien's membership
in associations in the field for which classification is sought, which require outstanding achievements of their
members. On appeal, the petitioner, through counsel, claims to have satisfied a third criterion, 8 C.F.R.
§ 214.2(0)(3)(iii)(B)(4), pertaining to 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. We
concur with the director's rmding that the beneficiary meets only the first ofthese criteria. The petitioner's claims
regarding the remaining two criteria revolve in whole or in part around the beneficiary's status as a fifth Dan
holder. Counsel's unsubstantiated claims about that status cannot satisfy the statutory demand for extensive
documentation of sustained national or international acclaim.
The record does not establish that the beneficiary is an alien of extraordinary ability in athletics, which has been
demonstrated by sustained national or international acclaim and whose achievements have been recognized in the
field through extensive documentation, as required by section 101(a)(15)(O)(i) of the Act. The petitioner failed to
establish that the beneficiary has received a major, internationally recognized award or that he sati~fies at least
three of the evidentiary criteria specified in the regulation at 8 C.F.R. § 214.2(0)(3)(iii)(B). Consequently, the
beneficiary is not eligible for nonimmigrant classification under section 101(a)(15)(O)(i) of the Act and the
petition cannot be approved.
The burden ofproof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.