U.S. Citizenship and Immigration Services

MATTER OF S-I-S- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 30,2016

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a tennis academy, seeks to classify the Beneficiary, a tennis player and coach, as an internationally-recognized athlete. See · Immigration and Nationality Act (the Act) section 101(a)(15)(P)(i), 8 U.S.C. § 1101(a)(15)(P)(i). This P-lA classification makes visas available to certain high performing athletes and coaches. Sections 204(i)(2) and 214(c)(4)(.A) of the Act, 8 U.S.C. §§ 1154(i)(2), 1184(c)(4)(A)(ii)(l).

The Director, Vermont Service Center, denied the petition based on two separate grounds, concluding that the Petitioner did not demonstrate: (1) that the Beneficiary would be coming to the United States to compete in athletic competition(s) which require participation of an athlete who has an international reputation; 1 and (2) that he seeks to enter the United States solely for the purpose of performing as an athlete with respect to a specific athletic competition.2

The matter is now before us on appeal. In its appeal, the Petitioner submits additional documentation and maintains that the Director inconsistently applied the relevant regulations and did not take into account public policy. In a subsequent request for evidence (RFE), we sought additional information about the Beneficiary's proposed activities and the tournaments in which he would compete. As the Petitioner has not responded within the specified time frame, we will adjudicate the appeal on the record before us.

Upon de novo review, we will dismiss the appeal.

I. LAW

The classification sought authorizes a foreign national having a foreign residence which he or she has no intention of abandoning to come to the United States temporarily to perform services for an employer or sponsor.3 Section 214(c)(4)(A)(i) of the Act, 8 U.S.C. § 1184(c)(4)(A)(i), provides that section 101(a)(l5)(P)(i)(a) ofthe Act applies to a foreign national who:

1 8 C.F.R. § 214.2(p)(4)(ii). 2 Section 214(c)(4)(A)(ii)(l) ofthe Act, 8 U.S.C. § 1184(c)(4)(A)(ii)(l). 3 Section IOI(a)(15)(P)(i) ofthe Act.

'

Matter ofS-1-S- LLC

(I) performs as an athlete, individually or as part of a group or team, at an internationally recognized level of performance;

(II) is a professional athlete, as defined in section 204(i)(2);

(III) performs as an athlete, or as a coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association of 15 or more amateur sports teams, if [certain conditions apply, or]

(IV) is a professional athlete or amateur athlete who performs individually or as part of a group in a theatrical ice skating production ....

Further, the foreign national must seek to enter the United Stat<1S temporarily and solely for the purpose of performing as such an athlete with respect to a specific athletic competition.4

The implementing regulation at 8 C.F.R. § 214.2(p)(4)(i)(A)5 states:

P-1 classification as an athlete in an individual capacity. A P-1 classification may be granted to an alien who is an internationally recognized athlete based on his or her own reputation and achievements as an individual. The alien must be coming to the United States to perform services which require an internationally recognized athlete.

For clarification, the regulation at 8 C.F.R. § 214.2(p)(3) defines the following terms:

Competition, event, or performance means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances. A group of related activities will also be considered an event. In the case of a P-2 petition, the event may be the duration of the reciprocal exchange agreement. In the case of a P-1 athlete, the event may be the duration of the alien's contract.

Internationally recognized means having a high level of achievement in a field evidenced by a d~gree of skill and recognition substantially above that ordinarily

----------------------4 Section 214(c)(4)(A)(ii)(l) ofthe Act. 5 See also 8 C.F.R. § 214.2(p )(I )(ii)(A)(l) (requiring that the Beneficiary will perform "at an internationally recognized level or performance").

2

(b)(6)

Matter ofS-1-S- LLC

encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.

With respect to the evidence required, the regulation at 8 C.P.R. § 214.2(p)(2)(ii) provides:

(A) The evidence specified in the specific section of this part for the classification;

(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien(s) will be employed;

(C) An explanation of the nature of the events or activities, the beginning and end dates for the events or activities, and a copy of any itinerary for the events or activities; and

(D) A written consultation from a labor organization.

To be considered internationally recognized, the athlete must also meet certain evidentiary requirements, including, for those without a major league contract, two of seven criteria.6

Finally, in Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010), we held that, "truth is to be determined not by the quantity of evidence alone but by its quality." That decision explains that, pursuant to the preponderance of the evidence standard, we "must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be prove~ is probably true." !d.

II. ANALYSIS

The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, seeking the Beneficiary's services as a tennis player and coach for a five year period ending in May 2020. In describing the duties to be performed on the 0 and P Classification Supplement, the Petitioner included coaching and teaching duties. The Petitioner proposed that the Beneficiary would compete in

sanctioned events and submitted a tournament calendar of events as an itinerary. The Petitioner indicated it did not have a written contract with the Beneficiary, and offered a summary of their oral agreement, which included a stipend and additional compensation from private lesson fees.

The Director determined that the Petitioner did not establish that the Beneficiary was coming to the United States solely to compete and that the tournaments in which he would compete were limited to internationally recognized athletes. On appeal, the Petitioner first maintains that the Beneficiary's coaching duties would be incidental to his time competing. Next, the Petitioner states that the

6 8 C.F.R. § 214.2(p)(4)(ii).

3

(b)(6)

Matter ofS-1-S- LLC

Director misapplied the regulation. The Petitioner concludes that the Director's interpretation will have adverse public policy implications in violation of congressional intent. The Petitioner has not responded to our RFE seeking clarification. For the reasons discussed below, we find that, in the absence of the specifics we requested, the record supports the Director's decision.

A. Purpose for Coming to the United States

The Petitioner listed the job title on the P-1 petition as "Professional Tennis Player and Coach." On the 0 and P Classification Supplement, the Petitioner indicated that the Beneficiary would compete, train, and condition in preparation for competition, but would also "provide coaching and teaching services to elite junior tennis players when not competing in professional tournaments." The Petitioner offered an itinerary of events. The terms of the oral agreement summary specify that the Petitioner would pay a stipend and permit the Beneficiary "to receive additional compensation from private lesson fees."

The Petitioner has advised that it seeks to classify the Beneficiary as a player, not a coach, and that any "coaching he may be doing will be incidental to his tournament competitions, part of promotional appearances and short vacations between competitions and in fair exchange for the sponsorship and support provided by [the Petitioner] to his professional career." The Petitioner's August 2015 letter includes an "Agreement with [the Beneficiary]" section. In this section, the Petitioner commits to provide, among other things, "access to the courts for him to offer private lessons to our junior players." The Beneficiary's obligations include "hit with and coach young recreational and junior players who come to [the petitioning center] to improve their tennis in between his training for and competing in professional tennis tournaments." The Petitioner also noted that the tennis "season" is year round, with indoor and southern competitions in the winter. While the Petitioner advised that the tournaments do not accept registrations far in advance, it did not estimate the number of tournaments in which the Beneficiary would compete.

On appeal, the Petitioner notes that the regulatory definition of competition, event, or performance can "include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity."7 It contends that the Beneficiary's services as a hitting partner and coach for youth players are "promotional activities related to the [P]etitioner's programs and individual lessons to those seeking them." It likens these activities to promotional "master classes." It then conch.ldes: "The coaching envisioned by the agreement is an incidental activity consistent with the regulatory definition of competition, event or performance," as defined in the regulation that clarifies the statutory requirements.

The unambiguous terms of the agreement between the Petitioner and the Beneficiary require the Beneficiary to provide coaching services. At issue is whether the Beneficiary "seeks to enter the United States temporarily and solely for the purpose of performing . as such an athlete with

7 8 C.F.R. § 214.2(p)(3).

4

(b)(6)

Matter ofS-1-S- LLC

respect to a specific athletic competition. "8 The relevant regulation does allow for the inclusion of certain undertakings, including promotional appearances, that are incidental and/or related to the activity, defined in athletics as a competition, season, tournament, tour, or engagement.9 Neither the statue nor the regulation specifically reflects an express intent to include coaching duties as incidental to performing as an athlete. Assuming some coaching duties might nevertheless qualify, any undertakings must be incidental and/or related to competing. The Petitioner has not designated how much time the Beneficiary would spend coaching or estimated the number of tournaments in which he would compete. For these reasons, the Petitioner has not established that the Beneficiary is coming to the United States solely for the purpose of performing as an athlete, with other activities being incidental to that purpose.

B. Performing Services that Require Participation of an Athlete with an International Reputation

As an itinerary, the Petitioner offered a tournament calendar for sponsored pro circuit events. The Petitioner did not provide any information from about qualifying for these events. In an August 2015 letter, the Petitioner maintained that "works diligently to NOT discriminate." In her letter, the number one woman in the world for eight of nine years between and who also has more than 10 years of experience as a commentator, stated that

"cannot afford to discriminate in any way as to who qualifies for an event in any particular country" and that "international recognition" is not a requirement for any sport. That said, acknowledged that "each tournament has discretion to ensure that the players qualify based on their merit and without discrimination" and that "seeks to avoid discrimination based on anything other than tennis ability, drive and determination." further noted that Grand Slam events require players to have an international ranking, with the ability to waive that requirement for "those who are competitive." Once again, the Petitioner did not supply the bylaws or similar materials confirming the requirements to compete in the futures events the Petitioner included in the itinerary.

On appeal, the Petitioner maintains the Director's application of the regulation would prevent top ranked tennis players from receiving P-1 visas to compete in the US Open. The Petitioner goes on to attest that the interpretation would result in the "gutting" of American professional sports such as baseball and basketball, which employ many international athletes. The Petitioner concludes that upholding the Director's decision "will lead to a result that clearly was not intended by Congress, is inconsistent with long standing policies and past adjudications by [U.S . Citizenship and Immigration Services (USCIS)] and could result in significant economic harm to professional sports in this country."

First, the plain and Unambiguous language of the regulations requires that the Beneficiary will perform "services which require an internationally recognized athlete" and "at an internationally

8 Section 214(c)(4)(A)(ii) ofthe Act. Notably, the Jaw provides a separate section pertaining to coaches, which is limited to members of certain teams or franchises that are part of a foreign league or association. Section 214(c)( 4)(A)(i)(lll) of the Act. 9 8 C.F.R. § 214.2(p)(3) (definition of"Competition, event, or performance").

5

(b)(6)

Matter ojS-1-S- LLC

recognized level or performance." 10 The Director is bound to follow the regulations. 11 An agency is not entitled to deference if it fails to follow its own regulations. 12 Ultimately, we are subject to the regulations and an administrative appeal is not the venue for challenging them.

Second, the Petitioner has mischaracterized the requirements. The regulation does not require that the event apply a subjective analysis of the "reputation" of each potential competitor that might give an appearance of discrimination. International recognition is defined as "a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that .such achievement is renowned, leading, or well-known in more than one country." 13 Factors that may demonstrate international recognition includes participation with a major sports league, with a national team, or for a U.S. college or university. 14 Rankings and honors are also relevant. 15 As major league participation is one indicia of international recognition, the Petitioner's position that applying the regulation would prevent major league teams from utilizing the visa is not persuasive. With respect to tennis, advised that Grand Slam competitions require an international ranking and that other events have the discretion to set merit qualifications. It remains that the Petitioner did not meet its burden of proof to document the requirements for the

futures tournaments at which the Beneficiary will compete. Without such evidence, the Petitioner has not established that the Beneficiary will perform services which require an internationally recognized athlete.

III. CONCLUSION

The Petitioner has not documented that the Beneficiary will solely perform as an athlete with only incidental other activities or that the tournaments in which he will compete have merit requirements consistent with international recognition. Accordingly, the Petitioner has not met its burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013).

ORDER: The appeal is dismissed.

Cite as Matter o.fS-1-S- LLC, ID# 73049 (AAO Dec. 30, 2016)

10 8 C.F.R. § 214.2(p)(J)(ii)(A)(/); 8 C.F.R. § 214.2(p)(4)(i)(A). 11 See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1120 (C.A.D.C. 1979) (an agency is bound by its own regulations); Reuters Ltd. v. FCC, 781 F.2d 946, (C.A.D.C.,I986) (an agency must adhere to its own rules and regulations; ad hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned). 12 U.S v. Heffner, 420 F.2d 809, (C.A. Md. 1969) (government agency must scrupulously observe rules or procedures which it has established and when it fails to do so its action cannot stand and courts will strike it down). 13 8 C.F.R. § 214.2(p)(3). 14 8 C.F.R. § 214.2(p)(4)(8)(2)(i)-(iii). 15 8 C.F.R. § 2l4.2(p)(4)(8)(2)(vi), (vii).

6