California Labor &
Employment Law Blog

Sep. 21 2015

Olympic Gymnast’s EB-1 Petition Denial Affirmed by District Court

Topics: Immigration

The Immigration and Nationality Act permits employers to petition for their employees who are “Persons of Extraordinary Ability” to immigrate to the United States.  For approval of a Person of Extraordinary Ability petition, the employer must demonstrate their employee’s extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim in the field of employment.  Receipt of a one-time award achievement such as an Academy Award, Nobel Prize, or Olympic medal generally satisfies this requirement.

On June 12, 2007 Integrity Gymnastics & Pure Power Cheerleading, LLC filed an EB-1 Person of Extraordinary Ability Immigrant Petition on behalf of Natalia Laschonava to work “in gymnastics.”  Ms. Laschonova seemed like an obvious candidate for an EB-1 petition.  As a member of the USSR national gymnastics team, Ms. Laschonova won a Olympic gold medal in Seoul in 1988. 

US Citizenship and Immigration Services (“USCIS”) didn’t agree.  On January 20, 2009 the Director of USCIS’ Nebraska Service Center  denied Integrity Gymnastics’ petition.  In the denial, USCIS differentiated between Ms. Laschonova’s field of expertise and the job she was offered.  After examining the job description Integrity Gymnastics supplied with the petition, USCIS determined that Ms. Lachonova was a person of extraordinary ability as a gymnast, but she was offered a position as a gymnastics coach.  Since Ms. Laschonova was not the coach of the 1988 USSR Olympic team, USCIS concluded that she is not a person of extraordinary ability as a gymnastics coach.

After an affirmance by the USCIS’ Administrative Appeals Office, Integrity Gymnastics filed suit against USCIS seeking review under the Administrative Procedures Act.  On September 14, 2015 Judge Algenon L. Marbley of the US District Court for the Southern District of Ohio affirmed USCIS’ denial.  Under the APA’s extremely deferential “abuse of discretion” standard of review the court found a rational basis for USCIS’ determination. “A competitive gymnast and a coach may share knowledge of the sport, the two rely on very different sets of basic skills”. 

The take away from this is that when filing an EB-1 Extraordinary Ability Petition, USCIS requires a strong and focused connection between the field of an employee’s acclaim and the position offered to the employee.  As to athletes and coaches, just because a person can do something really well, doesn’t necessarily mean that they can teach.

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For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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