Degree or an Alien of Exceptional Ability Pursuant to Section 203(h)(2) nf I he lmmigr;ninn and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All or I he dOCliiTlt'tllS related to this matter have been returned to the office that originally decided your case. Ple:tsc he <tdvi.sctl that any further inquir y that you might have concerning your case must be made to that office. Thank you,
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigr;11tl vis;1 petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appea l will he sustained.
The petitioner seeks to employ the beneficiary as an alien of exceptional ability as a profession ; d hockey player, pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act). 8 U.S.C § 1153(b )(2). The director determined "that the petitioner has not established el igibil it y for :he he nc lit sought."
On appeal, counsel submits a brief and additional evidence. For the reasons discuss ed hclov..:, the /\i\ U is satisfied that the evidence of record adequately establishes the beneficiary's eligibilit y lrll· the classification.
Law
Section 203(b) of the Act states, in pertinent part, that:
(2) Aliens who are memb ers of the professions holding advanced degrees or aliens of exceptional ability. --
(A) In general. -- Visas shall be made available ... to qualified immigrams who <.trc members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substanti;dly benefit prospectively the national economy, cultural or educational interests, or well arc of the United States , <lnd whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
The Service has held that an alien with exceptional ability as an athlete could , if otherwise qu;difiecl. qualify as a person of exceptional ability in the arts. Matter of Masters, 13 I&N Dec. 12."1 (D.D. 1969).
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of cxpcnis e significantly above that ordinarily encountered in the sciences, arts, or business." Th e regu L11 io11 ~ 11 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an alien must meet in order to qu alify as an alieno~ exceptional ability in the sciences, arts, or bus iness: (A) An official academic record showing that the alien has a degre e, diplom a, certificate, or similar award from a college, university, school, or oth er institution nf learning relating to the area of exceptional ability
(B) Evidence in the form of lel!er(s) from current or former employer(s) showing th<~t the alien has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the alien has commanded a salary, or other remuneration lor services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
Additionally, 8 C.F.R. § 204.5(k)(3)(iii) states that "[i]f the above standards do not readily apply tu the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary ' s eligibility. "
If a petitioner fails to submit the requisite evidence, the proper conclusion is that the petitionn l';tilt:d to satisfy the antecedent regulatory requirement of three types of evidence. See Kazarian ' '· USUS, 596 F.3d 1115 (9th Cir. 2010). If the petitioner has submitted the requisite evidence , USClS m ~ tl-: cs a final merits determination as to whether the evidence demonstrates "a deg ree or experti :-,e significantly above that ordinarily encountered." 8 C.F.R. § 204.5(k)(2) ; see also Kuzuriun, 5911 F. J cl at 1119-20. Only aliens whose achievements demonstrate "a degree of expertise significlll tly ah nve that ordinarily encountered in the sciences, arts, or business" are eligible for classific <tlion iiS aliens of exceptional ability . 8 C.F.R. § 204.5(k)(2); see also Kazarian, 596 F.3d at 1119-22.
While Kazarian involved a different classification than the one at issue in this proce edin g, the similarity of the two classifications makes the court's reasoning in Ka zarion per suas ive to 1 he classification sought in this matter. Specifically, the regulations state a regulatory st;tndard ;1nd provide a list of suggested types of evidence, of which the petitioner must submit a certa111 tlUtnl h.T Significantly , USCIS may not unilaterally impose novel substantive or evidentiar y requir emt: 11! s beyond those set forth at 8 C.F .R. § 204 .5. See Kazarian, 596 F.3d at 1221 , citing LlJile Kor('un Church v. Chertojj; 549 F.3d 749, 758 (9th Cir. 2008). Thus, if the regulatory st<tllcl<trd is 1.11 h;t\'c any meaning, users must be able to evaluate the quality of the evidence in a final llltl ils determination.
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then consiclcrccl in the context of a final merits determination. In this matter, the AAO will review the evid ence under the plain language requirements of each criterion claimed.
Analysis
A. Evidentiary Criteria
The petitioner seeks to classify the beneficiary as an alien of exceptional ability. Uron review or tl1c entire record, the AAO affirms the director's finding that the petitioner has establishe d !h al t!1e beneficiary meets the minimum eligibility requirements necessary to qualify as '''' alien ul exceptional ability. 8 C.F.R. § 204.5(k)(3).
B. The Offered Position
The regulation at 8 C.F.R. § 204.5(k)(4) states in pertinent part that "[t]he job offer portion of ;111 individual labor certification, Schedule A application, or Pilot Program application must clc!nonstr; ll c that the job requires a professional holding an advanced degree or the equivalent ol' <~n ;ilicn PI exceptional ability."
Upon review of the Form ETA 750, the AAO finds that, based upon such factors as the listed saiMy nr $500,000 , the job offer portion, in the aggregate, demonstrates that the job does require an alien of exceptional ability.
C. Final Merits Determination
The AAO will next conduct a final merits determination that considers all of the evidence in the cont e\ t of whether or not the petitioner has demonstrated that the beneficiary has "a degree or expeni sc significantly above that ordinarily encountered." 8 C.F.R. § 204.5(k)(2) .
In the present matter, the petitioner has submitted sufficient documentation, including evidence nl· ;; $500,000 annual salary, to establish that the beneficiary, a professional hockey player , is <In alieno! exceptional ability.
Ill . CONCLUSION
While the AAO does not find that all of the petitioner's evidence carries the weight imputed to i1 h\ counsel, the AAO does find the evidence of record sufficient to establish that the pel i1 ioner hds demonstrated the beneficiary's eligibility for the classification sought. Specifically, upon e< trdul review of the record, it is concluded that the petitioner has demonstrated by a preponderanc e or the evidence that the beneficiary has a degree of expertise significantly above that ordinaril y encountered. will substantially benefit prospectively the national economy, cultural or educational in terests, m welfare of the United States, and that his services are sought by an employer in the United St<Itcs. The burden of proof in visa petition proceedings remains entirely with the petitioner . Section 2<J I uf the Act, 8 U.S.C. * 1361. Here, the petitioner has sustained that burden.
ORDER: The decision of the director is withdrawn. The appeal is sustained ~~ ncl the peri 1 ion i: approved .