dismissed O-1A Case: Polo

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PUBLICCopy
U.S. Department ofHomela~d Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: SRC 06 138 52302 Office: TEXAS SERVICE CENTER Date: NOV O'l Z001
IN RE: Petitioner:
Beneficia
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(l5)(O)(i) of the Immigration and
Nationality Act, 8 U.S.C. § IIOI(a)(l5)(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.
~~-~Robert P. Wiemann, hier
/' .- Administrative Appeals Office
www.uscis.gov
SRC 06 138 52302
Page 2
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition. The petitioner filed
an appeal and a motion to reopen and reconsider. The director denied the motion on technical grounds and
forwarded the appeal to the Administrative Appeals Office (AAO). The AAO will dismiss the appeal.
The petitioner is the owner and president o~polo team and management company. The
petitioner seeks to change the beneficiary's nonimmigrant classification to that of an 0-1 alien with extraordinary
ability under section 101(aX15XO)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1101(a)(l5)(OXi), in order to employ him temporarily in the United States as a polo horse rider and trainer for a
period of three years at an annual salary of $37,716.00 plus travel expenses and bonuses.
The director denied the petition, finding that the petitioner failed to submit the required peer group consultation or
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 supported by various exhibits.
The first issue under discussion concerns the requirement of a peer group consultation. The regulation at 8 C.F.R.
§ 214.2(oX3)(ii) defines "peer group," in pertinent part, as "a group or organization which is comprised of
practitioners of the alien's occupation."
The regulation at 8 C.F.R. § 214.2(0)(5)(i) reads, in pertinent part:
(A) Consultation with an appropriate U.S. peer group (which could include a person or
persons with expertise in the field), labor and/or management organization regarding the
nature of the work to be done and the alien's qualifications is mandatory before a petition for
an 0-1 or 0-2 classification can be approved.
(B) Except as provided in paragraph (0)(5)(i)(E) of this section, evidence of consultation
shall be in the form of a written advisory opinion from a peer group (which could include a
person or persons with expertise in the field), labor and/or management organization with
expertise in the specific field involved.
(C) Except as provided in paragraph (o)(5)(i)(E) of this section, the petitioner shall obtain a
written advisory opinion from a peer group (which could include a person or persons with
expertise in the field), labor, and/or management organization with expertise in the specific
field involved. The advisory opinion shall be submitted along with the petition when the
petition is filed. If the advisory opinion is not favorable to the petitioner, the advisory
opinion must set forth a specific statement of facts which supports the conclusion reached in
the opinion. Advisory opinions must be submitted in writing and must be signed by an
authorized official of the group or organization.
On the 0 and P Classifications Supplement to Form 1-129, under "Name of Recognized Peer Group," the
petitioner identified the United States Polo Association (USPA). Exhibit 12 of the petitioner's initial
SRC 0613852302
Page 3
submission is a facsimile copy of a letter from of the USPA Handicap Committee. The letter
attests to the beneficiary's "exceptional competence and skill ... in the uncommon field of polo pony training
and schooling." The letter contains no reference to the beneficiary as a polo player. Rather,
repeatedly described the beneficiary as an assistant to polo player The letter appears to
have been prepared in conjunction with a prior nonimmigrant visa petition, to classify the beneficiary as a P-I
nonimmigrant as part of organization. According to documents provided by the
petitioner, that petition was filed in July 2005, and it was approved with validity through May 30,2009.
On April 10, 2006, the director issued a request for evidence (RFE), instructing the petitioner to "[s]ubmit a letter
from the United States Polo Association stating that is authorized to write on behalf of their
Association." In response, counsel stated:
When the letter was prepared, was the Handicap Chairman for the U.S. Polo
Association. In that capacity, ~rity to write a letter on behalf of the U.S.P.A.
Therefore, the USPA cannot provide a letter attesting to his current signing authority. He is now
the Gold Cup Tournament director, one of the sport's most prestigious events.
Please note that the Petitioner ... is on the Board of Governors of the U.S. Polo Association and
he has already attested to the Outstanding Ability of [the beneficiary].
Counsel does not explain why current position would preclude the USPA from affIrming that Mr.
••••llSedto have signing authority on behalf of the USPA.
8 C.F.R. § 214.2(0)(5Xi)(A)requires that the advisory letter must relate to "the nature of the work to be done."
s letter, prepared in 2005 for a P-l petition, relates to the beneficiary's work as an assistant to
The letter does not relate to the different position, with different duties, to which the new
0-1 petitIOnpertams.
While defendin letter, the petitioner also submitted a new affidavit (Exhibit 27) from _
_ a self-described "internationally renowned actor and polo enthusiast" and ''the sponsor and captain of
the San Saba Polo Team in the United States, and the CuluCulu Polo Team in Argentina." asserted that
he has "served on many United States Polo Association (USPA) committees," but he did not claim to be a USPA
official as of the date of his affidavit. He wrote in the capacity of a person with expertise in the beneficiary's
field.
The director denied the petition on July 12, 2006, stating that the "letter from .. is undated and
appears to be an advisory opinion written in support of a P-2 [sic], essential support alien petition filed on behalf
of the beneficiary." Regarding the subsequent letter from the director stated that the petitioner
had submitted "no evidence that _is an expert in the field of polo, therefore the petitioner fail[ed] to
submit an advisory opinion from a peer group, labor and/or management group with expertise in the area of the
field involved." The director asserted that "a consultation from the United States Polo Association would have
been appropriate."
SRC 06 138 52302
Page 4
On appeal, counsel states "an Advisory opinion from the USPA Board of Governors would simply be self­
serving, as the Petitioner ... is on the Board of Governors of the USPA." It remains that the petitioner chose, at
the outset of the proceeding, to identify the USPA as the "Recognized Peer Group" that would be providing the
advisory letter. Counsel adds that ''the Association is not currently providing advisory opinions," although the
record contains nothing from the USPA to confirm this assertion. The 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).
Counsel protests that the director found thai is allegedly not 'an expert in the field of polo.'" The
director made no such finding or allegation. The director made no fmding offact about whether or not_
is an expert in the field of polo. The director found only that the petitioner had submitted "no evidence that Mr.
_ an expert in the field of polo."
Counsel notes that_ in his affidavit, listed his qualifications relating to polo. _ affidavit reads,
in part:
I have played polo for over thirty years and am internationally recognized as a prominent polo
player. I have participated in over one hundred tournaments world wide, which qualifies me as
an authority to judge the polo abilities of other players. Currently, I am the sponsor and captain
of the San Saba Polo Team in the United States, and the CuluCulu Polo Team in Argentina. I
have served on many United States Polo Association (USPA) committees, including the Polo
Training Foundation and the Disciplinary Committee of the Palm Beach International Polo Club.
Exhibit E ofthe appellate submission is an interview wi~in the polo publication PoloLine. Exhibit F
is a cover article about_(including an interview) in Polo magazine, which indicates that _is in the
upper 10 percent of the U.S.P.A." Exhibit G is an article from POLO Players Edition that previews ''the 2006
high-goal season in Florida," discussing numerous teams including _ San Saba team. The article
mentions, but does not focus on••••
The available evidence tends to support the conclusion that a qualified expert in the sport of
polo, rather than a casual enthusiast. Upon consideration, we fmd that the petitioner has met his burden of proof
with respect to the consultation from a recognized peer group or person with expertise in the field.
There remains the more involved issue of the beneficiary's extraordinary ability in athletics.
Section 101(aXI5)(OXi) of the Act, 8 U.S.C. § 1101(a)(l5)(0)(i), provides nonimmigrant classification to a
qualified alien who has extraordinary ability in 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 regulation at 8 C.F.R. § 214.2(0)(3Xii) states: "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."
SRC 06 13852302
Page 5
In a letter accompanying the initial filing, the petitioner states:
[The beneficiary] has an outstanding reputation as a Polo Horse Expert. He is internationally
recognized as both a Polo Horse Player and Trainer on the international polo circuit. ...
[The beneficiary] has been working in P-l status in support of an internationally recognized
polo player since July of 2005. In that capacity, [the beneficiary] has utilized his valuable
experience with some of polo's top teams and players. [The beneficiary] has participated in
some of polo's most prestigious international tournaments. He has worked closely with top
players in the high-goal polo community of the world. He has worked with the top clubs and
teams. To mention a few, they include, but are not limited to the following clubs and teams:
1. Pegasus Polo Team
2. Mt. Liar Ville Polo Team
3. ERG Polo Team
4. Lockton Polo Club
[The beneficiary] has also participated in high-goal tournaments, which include, but are not
limited to the following:
1. Par Avion
2. The Governor's Cup
3. The Mother's Day Cup
4. The Stanford Cup
5. The USPA Governor's Cup
[The beneficiary's] extraordinary abilities as an internationally recognized polo horse player
and trainer have been recognized internationally for well over a decade. The polo horses that
[the beneficiary] has trained for competition have been used by him in his tournaments, as
well as have been sold as top dollar prestigious polo horses to other high-goal international
players.
We acknowledge the petitioner's statement, but at the same time we must stress that this statement amounts to
a series of claims rather than evidence to support those claims. 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. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972».
Pursuant to 8 C.F.R. § 214.2(0)(3)(iii), 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 eight other specified forms of documentation.
SRC 06 13852302
Page 6
The petitioner claims to have met the following regulatory criteria. We will discuss several of the eight
specified criteria further below, but first we must address an alternative regulatory clause.
8 C.F.R. § 214.2(oX3Xiii)(C) states that, if the criteria listed at 8 C.F.R. § 214.2(oX3XiiiXA) and (B) do not
readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to
establish the beneficiary's eligibility. This clause applies only when the eight listed evidentiary criteria do not
readily apply to the beneficiary's occupation. If the listed criteria do readily apply to the beneficiary's
occupation, but the beneficiary cannot meet those criteria, the petitioner does not have the discretion
arbitrarily to substitute different standards tailored to the beneficiary's accomplishments.
In the letter accompanying the initial submission, counsel stated that the petitioner "wishes to offer the
position of Expert Polo Horse Player and Trainer to" the beneficiary. The wording of counsel's letter is
significant for reasons that will become clear during the discussion of the appeal.
Counsel's opening letter mentions "comparable evidence," but there is no showing that the specified
regulatory criteria do not readily apply to the beneficiary's occupation. (Indeed, counsel claimed that the
beneficiary meets many of those criteria.) Counsel stated that the initial submission included "[c]omparable
evidence establishing [the beneficiary's] eligibility as an internationally recognized polo player, who has
played with the most elite polo players of the world." Specifically, the petitioner submitted photographs
showing that the beneficiary has posed with actor Prince of Wales and
heir to the British throne.
We note here that, while both e, without question, international
celebrities, neither ofthem earned their fame by playing polo. Therefore, it does not necessarily follow that a
polo player who plays on the same team as Dr must, himself, rank among "the most
elite polo players of the world." The photographs do not show how the beneficiary ranks when compared to
individuals who became famous by playing polo (rather than famous people who happen to play polo).
In response to the director's RFE, counsel maintained that the petitioner has submitted comparable evidence
because the regulatory criteria do "not readily apply to Polo Horse Playing or Training" (counsel's emphasis).
Counsel failed to provide any arguments or evidence to support the conclusion that the standard criteria do
not apply to the beneficiary's occupation. Counsel simply declared the criteria to be inapplicable, and then
proceeded from that a priori assumption.
The RFE response included, as Exhibit 26, copies of the same photographs showing the beneficiary with
ounsel claimed that these photographs demonstrate the beneficiary's
involvement in "prestigious international tournaments," with no evidence of the prestige of the tournaments
except that the beneficiary played "on the same teams as of England and
Counsel argued:
the fact that the Beneficiary has been able to play on the same team with the world's most
famous polo enthusiasts, such as of England and both who
[sic] are very prominent international polo figures, in itself demonstrates that [the
SRC 06 138 52302
Page 7
beneficiary] has risen to the top of the field. Under 8 C.F.R. § 214(0)(C) [sic], no further
documentation should be required, as those two exhibits speak volumes.
(Counsel's emphasis.) Counsel failed to explain why the beneficiary should be presumed to be a top polo
player because he has played polo with individuals who are famous for reasons other than playing polo
(specifically, an acting career and a hereditary title of nobility).
The director, in the denial notice, rejected counsel's attempt to invoke the "comparable evidence" clause,
stating: "[o]fthe eight criteria ... at least five readily apply to the beneficiary's occupation."
On appeal, counsel claims that,~phs, the beneficiary and are "wearing the same
uniform." In the photographs, __is wearing a green shirt with a red collar and the red numeral
"4" prominently emblazoned on the left chest and sleeves. Other players, wearing red-collared green shirts
showing numbers 1 through 3, stand beside him. The beneficiary is not one of these three individuals. The
record indicates that polo teams have four players, and it therefore appears that the four individuals with
numbered shirts constituted the four-player team. In the same photograph, the beneficiary and several others
each wear a blue jacket with a red and yellow crest on the left chest. The beneficiary's green shirt collar is
visible beneath the jacket. Therefore, the beneficiary and are clearly not "wearing the same
uniform," even if sharing a uniform were presumptive evidence of eligibility (which it is not). Given the
presence of four players in numbered, red-collared shirts, surrounded by a larger number of individuals in
green-collared shirts, a more reasonable conclusion is that the green-collared individuals (including the
beneficiary) are the supporting staff assisting the four numbered, red-collared players.
Counsel protests that the adjudicating officer's
burden of proof exceeds a reasonable standard. Again, the evidence speaks for itself. To
require further documentation is not only unreasonable, but it would be impossible. The
Officer is apparently unduly unaware of the extremely strict requirements and security
required to be anywhere near To expect further documentation from the
world's most renowned royal prince is not only unreasonable, but it is naive.
(Counsel's emphasis.) The above passage is problematic for numerous reasons. First and foremost, the
evidence does not speak for itself. The evidence shows that the beneficiary posed with in a
group much larger than a four-man polo team. The photograph, standing alone, does not even show that the
beneficiary ever actually played polo with much less that the beneficiary earned that privilege
by virtue of his own acclaim as a polo player. Counsel claims that the very existence of the photograph
"clearly demonstrates the polo affiliation between the Beneficiary and the Prince," but an "affiliation" does
not compel the inference that the two individuals played together in the Gold Cup. Furthermore, in making
this argument, counsel repeats the demonstrably false assertion that the beneficiary and the Prince are
"wearing the same uniform."
Also, while counsel rightly asserts that access to is so restrictive that we cannot reasonably
expect further evidence from the Prince himself, this assertion would be relevant only if we were to assume
SRC 0613852302
Page 8
that~elf were the only source of reliable infonnation about the circumstances under which
the photograph was taken. The petitioner does not explain the unavailability of other evidence placing the
beneficiary and the Prince on the same team such as statements from any of the numerous other unidentified
people shown in the photograph and published articles or copies of internal team documents.
Given these factors, we cannot accept counsel's claim that the photographs showing the beneficiary,_
~dnumerous other individuals are obvious evidence of the beneficiary's eligibility.
With regard to the "comparable evidence" clause, counsel states, on appeal, that the beneficiary seeks
classification as "a Polo Horse Trainer, not a Polo Player." Elsewhere in the same brief, counsel states that
the director "overlooked the most important fact: the petition is for a Trainer, not a Player." The Form 1-129
petition referred to the beneficiary as a "Polo Horse Rider & Trainer" who "Trains and rides horses for polo
competitions." The description on the Form 1-129 was arguably ambiguous, but in correspondence
accompanying the initial filing, counsel stated that the petitioner sought to employ the beneficiary in "the
position of Expert Polo Horse Player and Trainer," and in response to the RFE, counsel claimed that the
standard eight regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iii)(B) were not applicable ''to Polo Horse Playing
or Training." Only on appeal does counsel attempt to shift the emphasis primarily to the beneficiary's
training duties, stating that the beneficiary's "polo horse playing is merely and [sic] adjunct to his training
duties." Nowhere in counsel's previous correspondence can we find an emphasis on the beneficiary's training
duties over his playing. Counsel does not explain why, in previous submissions (and even in parts of the
appellate brief), counsel placed so much emphasis on the beneficiary as a polo player.
The petitioner's own introductory letter appears to place equal emphasis on playing and training, repeatedly
referring to the beneficiary as a "Player and Trainer." Even the affidavit from which
counsel claims the director disregarded, devotes considerable space to the ben~a polo
player, with only four sentences mentioning that the beneficiary "is also a top horse trainer." Whatever the
beneficiary's other intended duties, it is clear that the petitioner intends for the beneficiary to play on the
petitioner's polo team, and therefore it is entirely appropriate to consider evidence relating to the beneficiary's
recognition as a polo player.
Counsel contends "[t]he regulations do not require that the Petitioner submit evidence that the criteria 'do not
readily apply to the beneficiary's occupation,' but rather that the 'petitioner may submit comparable evidence
in order to establish the beneficiary's eligibility.'" The full text of 8 C.F.R. § 214.2(o)(3)(iii)(C) reads: "If the
criteria in paragraph (0)(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." The wording
implies that there must be some showing that the criteria "do not readily apply to the beneficiary's
occupation." As to who must make that showing, there is no presumption in the petitioner's favor. Section
291 of the Act, 8 U.S.C. § 1361, places the burden of proof on the party seeking benefits. It is the petitioner's
burden to show that the criteria do not readily apply to the beneficiary's occupation, and it is also the petitioner's
burden to establishthat the alternativeevidenceis, indeed, comparableto the caliber of evidence described in the
standard criteria listed at 8 C.F.R. § 214.2(0)(3)(iii)(A)and (B).
SRC 06 138 52302
Page 9
Furthermore, whether or not one relies on the "comparable evidence" clause, the burden is still on the petitioner
to show that the beneficiary "is one of the small percentage who have arisen to the very top of the field of
endeavor" as required by 8 C.F.R. § 214.2(oX3)(ii) and has earned "sustained national or international
acclaim" as required by section 101(aXI5XOXi) of the Act and 8 C.F.R. § 214.2(0)(l)(ii)(A)(1). The
petitioner cannot meet this threshold with photographs of the beneficiary with celebrities.
The petitioner has, throughout the proceeding, submitted evidence categorized according to the regulatory
criteria at 8 C.F.R. § 214.2(0)(3)(iii)(A) and (B). Having rejected counsel's attempt to rely on the
"comparable evidence" clause, we will now tum to these criteria.
8 C.F.R. § 214.2(0)(3)(iii)(A) indicates that "[r]eceipt of a major, internationally recognized award, such as
the Nobel Prize" is, by itself, sufficient to establish sustained acclaim and extraordinary ability. The
petitioner initially did not claim that the beneficiary met this requirement, but on appeal, counsel states that
"the Beneficiary's participation in some of the world's most prestigious Polo tournaments and working with
some of the world's most famous polo figures" is "comparable evidence applicable to the world of Polo."
The AAO rejects categorically the assertion that "participation" of this kind is comparable to "a major,
internationally recognized award, such as the Nobel Prize." The record appears to indicate that prominent
polo players at major tournaments are routinely attended by trainers and other support staff, such that the
support staff outnumber the players themselves. Such individuals are not, by mere association, akin to
international prize winners.
Counsel also cites "documentation of the Beneficiary's receipt of a Groom Award from the U.S. Polo
Association, which is an internationally recognized award from the highest polo authority in the United
States." The record is devoid of evidence that this award is a major~ internationally recognized award. The
regulatory reference to "the Nobel Prize" gives some indication of the caliber of prize that would merit
consideration under the "major award" clause. From the structure of the regulations, it is clear that not every
internationally recognized award is a major internationally recognized award. Furthermore, the USPA is a
national, rather than international association. We will discuss the award further in the context of the first of
the lesser regulatory criteria, below.
Documentation of the alien's receipt of nationally or internationally recognized prizes or
awards for excellence in the field ofendeavor. 8 C.F.R § 214.2(o)(3)(iii)(B)(J)
The petitioner cited several exhibits as evidence that the beneficiary meets this criterion. Exhibit 9 is a copied
page from a publication apparently called The Blue Book, said to date from late 1998, indicating that the
beneficiary "was named Most Valuable Player" in "the final of the Dominican Cup at Houston Polo Club,"
before a crowd of "hundreds of polo enthusiasts."
Exhibit lOis a certificate from the USPA, showing that the beneficiary won "the ••••••••••
Award for 2000." The certificate was signed by as "Chairman - USPA" and by the
petitioner as "Club President," which indicates that the award was presented by the club under the USPA's
authority, rather than directly by the USPA as a national organization. If every USPA member club presents
SRC 06 13852302
Page 10
its own Groom Award each year, as appears to be the case, then the award is local and does
not establish recognition beyond the individual club that presented the award.
Exhibit 11 is an undated page from what appears to be a brochure or magazine, with the legend
pen - Founder's Cup - Polo Espanol" at the bottom of the page. The page shows eight group
photographs, including a photograph captioned "Team Cyberonics Takes Home the Gold at the Brinker Cup!"
The photograph shows seven people, including the beneficiary.
Exhibit 13, a copy of a page from POLO Players Edition, indicates that Spencer Farms (for which the
beneficiary was then playing) defeated Lockton in the 2001 Southwest Circuit Governor's Cup final at the
Houston Polo Club. The reference to the "Southwest Circuit" suggests a regional rather than national or
international competition.
Exhibit 14 is a document bearing the heading "Houston High-Goal Series Polo Teams 2001." The document
lists the rosters of eight four-man teams, including the beneficiary as a member o~ There is no
particular reference to any prize or award, and the petitioner did not explain how this document relates to
prizes or awards.
The petitioner's initial submission established the beneficiary's receipt of awards and his membership on
winning teams, but it did not establish their required national or international recognition. The record
contains no documentation about the awards, apart from the materials described above.
In the RFE, the director requested "evidence that the Houston Polo Club's Recognition, the U.S. Polo
Association's Groom Award, and the Brinker Cup are nationally or internationally recognized prizes or
awards for excellence." The director also requested "evidence that these tournaments [in which the
beneficiary played] are prestigious international tournaments."
In response, the petitioner submitted three new exhibits. Exhibit 20 contains printouts from the web site of
the Houston Polo Club, The site includes a quotation from the Robb
Report, stating thatthe club was "[v]oted '[o]ne of the top 5 high-goal polo clubs in the country.'" The record
contains no background information about the Robb Report, nor does it say who did the voting. Counsel
stated that, given the reputation of the Houston Polo Club, "any recognition from the Houston Polo Club is
recognition from one ofthe U.S.' most formidable Polo Clubs." Counsel's conclusion does not follow from
the premises. The reputation of a given polo club does not imply that each and every form of recognition
bestowed by that club is a nationally or internationally recognized prize or award for excellence.
Exhibit 21 consists of a printout of detailing the history of the
USPA, "the governing body of polo in the United States." Counsel stated that "an award from the U.S. Polo
Association is a national honor/award." This argument fails because an award from a national organization is
not necessarily a nationally recognized award, and it does not necessarily establish national acclaim. The
submitted materials from the USPA's web site do not mention the ward.
SRC 06 13852302
Page 11
Counsel stated that the documents in exhibit 22 establish that "the Brinker Cup . . . is one of the most
formidable polo competitions in the U.S." The documents in question, more printouts from various web sites,
mention the Brinker Cup but do not show the tournament's standing in relation to other competitions. A
printout 0
refers to the "3
f
Annual Land Rover Dallas Brinker Cup [on] Sunday, June 13,2004," which would place the
first annual event in 2002. Nevertheless, the "Social Calendar" for the Houston area on October 29, 1997,
published at refers to ''the
Houston Polo Club's Brinker Polo Cup competition." Either the Brinker Cup moved from Houston to Dallas
or there is more than one local Brinker Cup competition. Although the printouts date from 2006, nothing in
the record refers to any Brinker Cup at any location after 2004.
The director, in denying the petition, found that the petitioner failed to establish the importance of the awards,
and in some cases that the petitioner had not even confirmed the beneficiary's receipt of the awards claimed.
The director also noted that the beneficiary's award from the USPA is for his work as a groom, not as a player
or trainer.
On appeal, counsel states that the terms "groom" and "trainer" are synonymous in polo. Counsel cites no
documentary support for this contention, but even assuming it to be true, the petitioner has not established the
national or international recognition of the The director's failure to equate
the terms "groom" and ''trainer'' did not prejudice the outcome of the decision in this regard.
We affirm the director's finding under this criterion.
Documentation ofthe alien's membership in associations in the field for which classification
is sought, which require outstanding achievements oftheir members, as judged by recognized
national or international experts in their disciplines or fields. 8 C.F.R.
§ 214.2(0)(3)(iii) (B)(2)
Counsel asserted that the petitioner's initial submission included evidence to fulfill this criterion. Counsel,
however, did not identify the associations in question. A detailed list of exhibits accompanying that
submission matched each exhibit to a regulatory criterion, but the exhibit list makes no mention of
membership in associations, and the exhibits themselves refer to no such memberships.
In response to the RFE, counsel cited "[p]reviously submitted Exhibit 14," the list of "Houston High-Goal
Series Polo Teams 2001" that identified the beneficiary as a member of_ The record contains no
evidence that membership in requires outstanding achievements as judged by national or
international polo experts.
The director, in the denial notice, found that the petitioner had not satisfied this criterion. The director also
observed that membership in the Houston Polo Club is open to non-polo players, but the petitioner had not
claimed that the beneficiary was a club member or that such membership qualified under the regulation.
SRC 06 13852302
Page 12
On appeal, counsel does not contest the director's finding. Instead, counsel acknowledges that this criterion is
"[n]ot readily applicable to this occupation," without explaining the repeated prior attempts to satisfy the
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 ofsuch published material, and any necessary translation.
8 C.RR. § 214.2(0)(3)(iii) (B)(3)
Some of the petitioner's initial exhibits (numbered 10, 11, 13 and 18), described elsewhere in this decision,
take (or appear to take) the form of published materials. The petitioner did not establish that all of these
documents appeared in professional or major trade publications or other major media. Furthermore, none of
the articles were about the alien. Rather, they were about particular polo tournaments, with brief, passing
references to the beneficiary and to other competitors.
The petitioner's list of exhibits also, for some reason, identified exhibit 12 (the letter from Jimmy Newman of
the USPA) as "published materials," a description that clearly does not apply.
In response to the director's RFE, the petitioner submitted (as exhibit 23) copies of previously submitted
materials, along with copies of additional articles. Some of these materials had been submitted previously,
but were not initially associated with the "published material" criterion. The new articles follow the same
pattern as those submitted previously. Some report the results of competitions, and mention of the beneficiary
himself is generally limited to identifying the team members.
Some of the "published material" amounts to little more than team rosters. Even more general is a printQut
from an alphabetical list of hundreds of polo players in the
United States whose surnames begin with the letter S. Counsel failed to explain how the beneficiary's
inclusion in a large, alphabetical directory could possibly establish national acclaim, extraordinary ability, or
any other attribute necessary for the classification sought.
The caption of a photograph states that the beneficiary "performs his duties as a polo groom by warming up a
polo pony before a practice match." Another caption indicates that the beneficiary "'tacks up' a polo pony
before a workout." These captions contain no information except that the beneficiary is a polo groom, an
assertion that the director never contested. The petitioner did not provide the required title, date, or author. A
captioned photograph showing the beneficiary and another polo player "do[ing] some reaching in the last
Commuter League tournament" shows a photographer's credit but no publication title, date, or author.
The director found that the submitted "articles are not written about the beneficiary and his extraordinary
ability, and it has not been shown that these articles are from professional or major trade publications or major
media."
On appeal, counsel states that the above materials were "intended to be 'comparable evidence' considering
the unique nature of the beneficiary's position. Therefore, the evidence submitted should not be expected to
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Page 13
fully comply with the criteria stipulated in the regulations." It does not follow that non-qualifying evidence
that superficially relates to parts of certain criteria constitutes "comparable evidence." As we have already
explained, the "comparable evidence" must still establish that the beneficiary enjoys national or international
acclaim and is at the very top of his field. Fleeting mentions, often in. unidentified publications, are not
"comparable" to the caliber of published material that the regulation demands.
We affirm the director's finding under this criterion.
Evidence of the alien's original scientific, scholarly, or business-related contributions of
major significance in thefield. 8 C.P.R. § 214.2(0)(3)(iii)(B)(5)
.
Under this criterion, the petitioner initially cited three letters (exhibits 15-17) from polo players and an article
from a polo publication (exhibit 18). The article, "Brinker Cup: Fast Polo and Record Funds," appeared in
the December 18, 1999 issue of Sidelines. The article reads, in part:
One point handed eatzi's, sponsored by the Brinker International-owned food chain, the
Brinker Cup in Houston Polo Club's third annual Brinker Cup Polo Tournament.
In a match that raised more than $32,000 for The Epilepsy Foundation of Southeast Texas,
Team eatzi's ... narrowly defeated The Palm, sponsored by Houston's leading steak and
lobster restaurant.
The petitioner emphasized the fund-raising aspect of the tournament, but did not explain how raising these
funds amounted to an "original contribution," or, for that matter, why the beneficiary in particular deserved
credit for the "original contribution." While the Sidelines article identified the beneficiary as ''the day's high­
scorer," the article also indicates the beneficiary did not play for the winning team. The implication is that the
beneficiary somehow made an "original contribution" simply by being one of numerous players in a charity
tournament, but the petitioner did not explain how or why this should be so.
The three witness letters are facsimile copies of letters dated between June 17 and 23, 2005. These dates
coincide with the filing of the prior P-1 nonimmigrant visa on the beneficiary's behalf, under the terms of
which the beneficiary sought admission as assistant. The letter signed by
(exhibit 15) described the beneficiary as "an excellent polo groom/rider, as well as being one of the most
talented trainers on the international polo circuit." Stuart "Sugar" Erskine (exhibit 16) placed the beneficiary
among "top international polo grooms/trainers/riders." The text of the letter signed by Brad Blake (exhibit
17) is identical to the letter signed by None of these letters identifies any "original
contribution" by the beneficiary, or even identifies the beneficiary as a player in his own right. Rather, the
letters focus on the beneficiary's role at assistant.
In the RFE, the director stated: "[i]n order to meet this criteria [sic], the beneficiary must have made major
significant contributions of a scientific, scholarly, or business related nature. Ifyou maintain that the beneficiary
meets this criteria [sic], explain specifically how this is met by the beneficiary. Submit evidence of this." In
response, counsel again cited the beneficiary's participation in a charity tournament as evidence of an original
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Page 14
contribution of major significance. Counsel did not explain how playing polo in a polo tournament amounted
to an original contribution of major significance.
Furthennore, counsel disregarded the director's specific instruction to explain how this contribution was "of a
scientific, scholarly or business related nature." When considering the petitioner's claim that the beneficiary
meets this criterion, we cannot ignore the wording of the regulation. Whereas other regulatory passages refer
to "extraordinary ability in the fields of science, education, business, or athletics," 8 C.F.R.
§ 2l4.2(0)(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 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 and success will not satisfy 8 c.P.R.
§ 2l4.2(0)(3)(iii)(B)(5) as evidence of the beneficiary's original contributions. Competitive success is
already covered by 8 C.F.R. § 2l4.2(o)(3)(iii)(B)(1), pertaining to prizes and awards, and 8 C.F.R.
§ 2l4.2(0)(3)(iii)(B)(3) covers any media attention that an athlete may earn by standing out from others in a
particular sport.
The director, in the denial notice, stated that "[t]he beneficiary's participation in a tournament which raised
funds for charity ... fails to demonstrate that the beneficiary made a contribution of major Significance." On
appeal, counsel offers no response to the director's findings except to acknowledge that the criterion is "[n]ot
readily applicable to this occupation." We affinn the director's finding under this criterion.
Evidence that the alien has been employed in a critical or essential capacity for
organizations and establishments that have a distinguished reputation. 8 C.F.R.
§ 214.2(o)(3)(iii)(B)(7)
The petitioner originally cited two exhibits as evidence that the beneficiary meets this criterion:
Exhibit 7. Picture of [the beneficiary] with ~henthey played together
on the San Saba Team in November 1997 in the Isla Carrol [sic] Cup at Old
Pueblo Farm in Houston, Texas.
Exhibit 8. Pictures of [the beneficiary] with •••••••••• hen they played
together in London, England for the Gold Cup, July 1991.
(Emphasis in original.) The photographs contain no internal evidence that they were, in fact, taken at the Isla
Carroll Cup or the Gold Cup (respectively). Furthermore, the initial submission contained no evidence to
establish the distinguished reputations of the Isla Carroll Cup or the Gold Cup. The petitioner cannot
establish the reputations of these events simply by naming them. Finally, the photographs do not establish
that the beneficiary was employed in a critical or essential capacity at the events in question. Participation
alone is not inherently a critical or essential capacity.
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Page 15
In response to the director's RFE, counsel cited the same photographs but did not identify any organization or
establishment with a distinguished reputation for which the beneficiary had been employed in a critical or.
essential capacity. The director concluded as much in the denial decision.
On appeal, counsel states: "[m]ultiple sources of evidence have been provided to show the alien's association
with persons of distinguished reputation." Counsel asserts that the beneficiary meets this criterion because
"having your picture taken with the Prince of England ... carries with it a prestige that only few of even the
most elite have enjoyed." The requirement is employment in a critical or essential capacity for an organization
or establishment with a distinguished reputation, not association with persons of distinguished reputation.
By training horses for top polo players, a polo trainer (or groom) may work in a critical or essential capacity
for polo teams with distinguished reputations. Nevertheless, the record contains little documentation
regarding the particular players and teams for whom the beneficiary trained horses. Instead, counsel has
consistently focused on the photographs of the beneficiary with The
petitioner has submitted lists of players for whom the beneficiary is said to have served as a trainer, but the
record contains no supporting documentation to establish the accuracy of these lists.
Whether one relies on the standard regulatory criteria or on comparable evidence, the petitioner must show
that the beneficiary has earned sustained national or international acclaim at the very top of his field. Section
101(a)(l5)(O)(i) of the Act, 8 U.s.C. § 1101(aXI5)(0)(i); 8 C.F.R. § 214.2(0)(3)(ii), (iii). Most of the
available documentary evidence (as opposed to testimonial evidence, solicited especially to support this
petition) concerns the period from 1998 to 2001, or earlier. Assuming, for the sake of argument, that the
beneficiary achieved some degree of acclaim during that short period, the record does not contain similar
documentation showing that the beneficiary continued to enjoy that level of acclaim during the five years
leading up to the filing of the petition in 2006. The dearth of recent documentary evidence indicates that
whatever acclaim the beneficiary may have earned in the past has not been sustained.
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)(l5)(OXi) of the Act. The petitioner
failed to establish that the beneficiary has received a mlYor, 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(oX3XiiiXB). The
petitioner 'likewise failed to establish that those ·criteria did not readily apply to his occupation and provide
comparable evidence in lieu of the specified criteria. Consequently, the beneficiary is not eligible. for
nonimmigrant classification under section 101(aXI5XOXi)of the Act and the petition cannot be approved.
The burden of proof 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.