The Situation

My client was an Olympic champion wrestler. He had translated that achievement into a successful second career as a coach, running his own wrestling school in the United States and producing champions at every level of competition.

He had been in the country for many years, long enough to have built a life, raised two U.S. citizen children, and developed a coaching practice that drew students from multiple states. He had held F-1, H-1B, and O-1 status at various times, each with its own renewal process, its own fees, and its own uncertainty. He and his wife wanted permanent residence, and they had retained another immigration law firm to pursue an EB-1A extraordinary ability petition on his behalf.

That petition was denied. The denial turned on a distinction that was both foreseeable and avoidable: USCIS concluded that the evidence of extraordinary ability pertained to my client as an athlete, not as a coach, and that the two were distinct occupations for purposes of the petition. It was a logical if frustrating outcome.

The Strategy

I decided to file an exceptional ability NIW under the Matter of New York State Department of Transportation criteria (which has since been replaced by Matter of Dhanasar). The record was strong; it was just competing in the wrong weight class.

Coaching as an Art

Exceptional ability extends to three fields: the sciences, the arts, and business. Wrestling coaching is not an obvious fit for any of them, so the first task was to make it fit. USCIS has long read athletics into the arts, going back to Matter of Masters, 20 I&N Dec. 953 (Assoc. Comm. 1994). Since Congress has never expressed an intent to upset that settled construction, it is presumed to have adopted it. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). The Schedule A, Group II definition points the same way: art is any field of knowledge or skill for which colleges commonly offer courses leading to a degree, and colleges teach coaching. See 20 C.F.R. § 656.5(b)(1).

I built the case on that foundation.

Exceptional Ability

The first half of the case was qualifying as a person of exceptional ability: a degree of expertise significantly above that ordinarily encountered in the field. The regulation lists six factors and requires three. See 8 C.F.R. § 204.5(k)(3)(ii). I argued each one.

I argued that the USA Wrestling Silver certification, held by only 143 coaches in the country, did the work of four. It is an award from an institution of learning in his field, conferred through a five-day Coaches College and a regimen of twenty supervised tasks across the planning, physical, psychological, and technical development of athletes. It is a certification to practice the occupation at a level the Bronze and Copper grades do not reach. Drawing on an advisory opinion from the national federation’s coaching-education director, I argued the Silver certification is also a form of membership in a professional association of elite coaches, and a form of recognition by the sport’s governing body for achievement.

Two other factors qualified on their own. He was well past the ten years of full-time experience the regulation names, and I argued the experience itself met the standard, because it was not ordinary: he had spent it producing state, regional, and national champions, and athletes who reached the U.S. national team. And he had commanded earnings well above what coaches in his field ordinarily make, which the regulation treats as evidence of exceptional ability in its own right.

Three factors were the requirement. He met them twice over.

The National Interest Waiver

On national scope, the evidence was compelling once properly organized and presented. My client’s students came from New Jersey, New York, Connecticut, Pennsylvania, and other states. They were not local kids from a single neighborhood. He had produced national champions. His students regularly went on to college and university wrestling programs across the United States, including at Columbia, Brown, Penn State, Lehigh, Hofstra, Rutgers, and Maryland. Members of the U.S. national wrestling team had trained under his direction. Coaching programs and private clubs throughout the country sought his consulting expertise.

The national interest argument was more nuanced.

I began with the self-employment issue. My client ran his own private wrestling school. In the context of a conventional permanent labor certification, self-employment is a bar. Under 20 C.F.R. § 656.3, a qualifying job offer for purposes of labor certification must be an offer of permanent, full-time employment by an employer other than the applicant. Self-employed individuals cannot, by definition, satisfy this requirement. Self-employment is common in coaching: the Labor Department’s own handbook reports that about sixteen percent of coaches are self-employed, with many more on arrangements irregular enough to resemble it. A labor certification was not just inconvenient; it was categorically unavailable. That alone supported the waiver.

I went further. Even if a labor certification were possible, it gave no way to prefer the better candidate. The process asks an employer to show that no qualified U.S. worker is available; it never asks whether the foreign worker is superior. Under that framework a U.S. coach with a certificate and five years’ experience looks as qualified on paper as an Olympic champion who had spent decades producing national champions at his own school. My client’s record could not be reduced to a checklist. It was a body of evidence: two national champions, more than twenty state champions, numerous regional and district champions, athletes who earned scholarships at prominent universities, and a reputation that drew students from across the country. Labor certification was never built to weigh a record like that.

There was another problem with the labor certification route. The requirements an employer lists must be those normally required for the occupation, not ones tailored to a single person. See 20 C.F.R. § 656.17(h)(1). The very things that set my client apart, that he had trained national champions and placed students on the U.S. national team, could not be written into a job posting without being struck as unduly restrictive. The process could not describe him, let alone prefer him.

Finally, I argued that my client’s work already benefited far more U.S. workers than the labor certification process could conceivably protect in this case.

The Result

The NIW was approved in twenty-seven days. That was before such cases were even eligible for the USCIS premium processing program.