dismissed O-1A Case: Tennis Coaching

(b)(6)
,· ..... . ... 
DatMAR 2. 1 2013 Office: VERMONT SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Honieland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washingt,~n, pce~~~j2090 
U.S.. LitlZ p 
and Immigration 
Services · 
FILE: 
PETITION: Petition for a Nonimmigrant Worker under Section lOI(a)(IS)(O)(i) of the Immigration and 
Nationality Act;8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: . 
INSTRUCTIONS: 
Enclosed please find the de~ision 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 mad~ to that office. 
If you believe the AAO inappropriately appli~d 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 file any motion 
directiy 'witb tbe 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 Chi_ef, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
" . ... 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition; The 
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is now 
before the AAO on a combined motion to reopen and reconsider. The motion will be dismissed. 
The petitioner filed this nonimmigrant petition seeking· to classify the beneficiary as an 0-1 . 
nonimmigrant pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as 
an alien with extraordinary ability iri athletics. The petitioner states that it is a provider of professional 
tennis services. and instruction. It seeks to employ the beneficiary as a professional tennis 
coach/instructor for a period of three years. · 
The director denied the petition, fmding'that the petitioner failed to establish that the beneficiary is an 
alien with extraordinary ability in athletics as a tennis coach/instructor. The director found that the 
evidence submitted failed to satisfy the criterion set forth at 8 C.F.R. § 214.2(o)(3)(iii)(A) or three of the 
eight criteria set forth at 8 C.F.R. § 214.2(o)(3)(iii)(B). 
Upon review of the director's decision, the AAO found the majority of the evidence in the record 
pertains to the beneficiary's achievements as a competitive tennis player, not ~ a tennis coach or 
instructor.: The AAO noted it conducts appellate review on 
a de novo basis. See 'Soltane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004). The AAO noted the statute requires that the beneficiary seek entry 
into the United States "to continue work in the area of extraordinary ability." Section 
101(a)(l5)(0)(i) of the Act, 8 U.S.C. § 110l(a)(l5)(0)(i). The AAO further noted the beneficiary 
intends to· work in the area of tennis coaching/instruction; however, the petitioner has devoted 
exactly one brief paragraph· to describing the beneficiary's professional coaching experience. 1 The 
AAO found the minimal evidence in the record does not establish· that the beneficiary has coached 
students who compete successfully at the national or international level of the sport, or at any 
. professional level. In fact, the AAO noted the petitioner had not identified any tennis players who 
have been coached by the beneficiary. Therefore, the.AAO concluded that that the petitioner failed 
to establish the beneficiary is one of the small percentage of individuals who are recognized as 
having risen to the very top ofthe tennis coaching field. · 
The matter is now before the AAO on a combined motion to reopen and reconsider. · On motion, 
counsel for the petitioner addresses specific evidentiary deficiencies that were raised in the AAO's by 
submitting two reference letters. 
A motio·~ to reopen must state the new facts to be proven in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
1The AAO noted that the petitioner's claims regarding the beneficiary's coaching career consist ofthe following : 
[The benefiCiary] has professional experience as well, having served as Tennis Coach from 2001 
through 2003 with the in Lithuania; Assistant Coach at in 
South Carolina during summer of 2004 and 2006; and Professional Tennis Coach since 2007 with the 
(b)(6)
Page 3 
decisions to establish that the decision was based on an incorrect application of law or Service 
policy. A motion to reconsider a decision on an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l )(iii) requires that the 
motion must be "[a]ccompanied by a statement about whether or not the· validity of the unfavorable 
decision has been or is the subject of any judicial proceeding and, if so,, the court, nature, date, and 
status or result of the proceeding." Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires 
that "[a] motion that does not meet applicable requirements shall be dismissed." In this case, the 
petitioner failed to submit a statement regarding if the validity of the decision of the AAO has been 
or is subject of any judicial proceeding. As such, the motion must be dismissed pursuant to the 
regulation at 8 C.F.R. § 103.5(a)(4). 
Even if the petitioner had filed a motion that meets the regulatory requirements at 8 C.F.R. 
§ 103.5(a)(4), the AAO would dismiss the combined motion to reopen ~d reconsider on the merits. 
Regarding the motion to reconsider, although the petitioner indicated that it was seeking to file a motion 
to reconsider, the petitioner offers new evidence for the AAO's consideration and does not Claim that the 
AAO's adverse decision was inconect based on the evidence of record at the time of the initial decision. 
The motion does not meet the requirements of a motion to reconsider pursuant to 8 C.F.R. § 
103.5(a)(4). Accordingly, the motion to reconsider will be dismissed. 
Regarding the motion to reopen, on the Form I-290B, Notice of Appeal or Motion, counsel states, 
"Please see attached motion and supporting documentation." Counsel su~mits a short brief in which 
she summarizes the newly submitted evidence. She asserts: 
In the instant case, although the Beneficiary gained her reputation as a tennis player and 
not as a coach, her qualifications as a coach are based upon the knowledge and 
experience she·gained as an athlete. 
The petitioner submits, as evidence in support of the motion to reogen, newly-obtained reference letters 
from tennis director at in Boca Raton, Florida and a 
certified professional tennis coach, both attesting to the . beneficiary's coaching qualifications and 
achievements. 
In a letter dated June 6, 2010, states he has known the beneficiary for five years and 
the beneficiary is a top tetmis player and coach of extraordinary ability. This evidence fails to 
establish that the beneficiary is an alien with extraordinary ability in . athletics as a tennis 
coach/instructor. 
In a letter dated June 10, 2010, states that the beneficiary has been coaching his brother, 
a 16 yr. old junior player, for three years "when he trains in South Florida." He states that his brother 
"is the number one junior player in Barbados." However, additional documentary 
evidence is needed 
(b)(6)
' . . . 
Page4 
to establish that the beneficiary's stud~nt has won nationally or intematimially recognize~ prizes or' 
awards for excellence in the field. While the petitioner has provided the name of the beneficiary's 
claimed award-winning student, the petitioner has not provided documentary evidence of their 
award. · The record contains no primary evidence of the beneficiary's experience as a coach. The 
petitioner has not adequately explained why documentary evidence of such award is not available. 
The third-party statements of witnesses regarding such awards are insufficient to meet this criterion. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. Further, the 
evidence indicates that the beneficiary has only been coaching tennis players competing at the junior 
level. Even if the petitioner had submitted a copy of the award, a national award received by a 
student competing at the junior level would not carry the same evidentiary weight as an intemational 
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. Therefore, the evidence on motion does· not 
establish that the beneficiary has coached students who compete successfully at the natjonal or 
intematio~al level of the sport, artd, therefore, fails to establish that the beneficiary is an alien with 
extraordinary .ability in athletics as a tennis coach/instructor. 
In addition, as stated above, a motion· to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain 
meaning of "new," a new fact is found to be evidence that was not available and could not have been 
discovered or presented in the previous proceeding? A review of the . evidence that the petitioner 
submits on motion reveals no fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2); the 
petitioner failed to explain why the evidence was previously unavailable and could not have been 
subm1.tted earlier. The petitioner has been afforded three different opportunities to submit evidence in 
support of the p~tition: at the time of the original filing of the petition on December 18, 2008, in 
response to the director'srequesrtor additional evidence issued on December 23, 2008, and at the time 
of the filing of the appeal on February 27,2009. As the evidence submitted on motion reveals no fact 
that could be considered "new" under 8 C.F.R. § 103:5(a)(2), the petitioner has not established a proper 
basis for a motior~ to reopen. For this additional reason, the motion will be dismissed pursuant to 
8 C.F.R. § 103.5(a)(4). 
Motions for · the reopening of immigration proceedings are disfavored for the same reasons as . are 
petitions for rehearing and· motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314, 323 ( 1992)( citing INS v. Abudu, 485 U.S. 94 ( 1988)). A party seeking to reopen 
a proceeding bears a '"heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the 
petitioner has not met that burden.· · 
Accordingly, the motion to reopen will be dismiss~d. 
ORDER: The motions to reopen and reconsider are dismissed, the AAO's previous 
decision will not be disturbed, and the petition remains denied. 
2 The word "new" is defined as "1. having existed or been made for only 'a short time ... 3. Just discovered, found, or learned 
<new evidence> ... . " Webster's II New College Dictionary 736 (2001)(emphasis in original).