April 2020 Success Story: O-1A Approved for Australian Harness Racer
Sherrod Sports Visas most recent premium processing case, an O-1A extraordinary ability petition for Australian harness racer Todd McCarthy is the success story of the month for April 2020. World-renown harness horse trainer Noel Daley successfully petitioned for an O-1A visa for Todd to participate in races, contact sponsors, product horse track-related events, and schedule content creation for harness racing-related media. Sherrod Seward, head of equestrian-related immigration matters for Sherrod Sports Visas, provides legal support and advocacy for the O-1 visa petition.
“Our goal is to be the absolute best immigration law firm for harness racers and the harness racing industry in the United States,” says Sherrod Seward.” “USCIS was unusually aggressive in adjudicating this petition, which led to a massive request for evidence, but we were able to overcome USCIS arguments and become even better sports immigration lawyers.”
The initial petition was well put together and backed up throughout with supporting evidence. All parties involved were actually very surprised by how much evidence was ignored, with the preponderance of evidence standard ignored on this harness racing O-1 case.
“I honestly thought there was little chance after reading the request for more evidence,” says harness racer, Todd McCarthy.” “So the approval was great news. I’m excited to get on the track with the horses and race in the United States.”
Indeed, the petition did include almost four hundred pages of applicable evidence and presented arguments for almost every one of the O-1A eligibility requirements. Sherrod had to make sure that USCIS actually took the time to look at each piece of evidence, apply the appropriate standard of evidence, and not make up any new rules – which happened!
In the request for evidence, USCIS stated two positions that do not appear anywhere in the regulations for O-1A visa petitions:
Sherrod Sports Visas explained that Todd would be compensated with advertising revenue attributed to sponsorship activities and winnings from competitions. USCIS said, “the documentation you provided does not describe in detail any specific sponsorship activities or competitions such that USCIS can determine the beneficiary's wage.”
USCIS also claimed that almost two dozen news publications we submitted for evidence needed to have Todd’s name highlighted in the articles.
In response, Sherrod researched books, case law, and even internal USCIS adjudication memos to educate USCIS on both of these incorrect positions, and on all other incorrect assertions made by USCIS on this harness race position.
The request for evidence began with a notice of potential litigation hold, an explanation of how and why the preponderance of evidence standard is used, and a case law reminder that USCIS cannot make up new rules.
To both of the assertions above, we responded with the following:
We would like to remind USCIS that “USCIS may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.”11 Kazarian v. USCIS 596 F.3d 1115 at 1122.
Other responses in the request were more nuanced and required closer research of case law and internal memos of USCIS:
Publications and news articles about the Todd in reputable media outlets and harness racing-related trade journals
Notes from the field director:
The director applied an improper standard to the online published materials and should not hold a petitioner to an unsupported view that materials that are published online generally lack probative value. The Director should evaluate whether the petitioner established that the submitted materials complied with the plain language of the criterion at 8 C.F.R. 204.5(h)(3)(iii) and consider relevant evidence such as whether the source of the published material (whether online or in print) has circulation statistics that are high compared to other publications.
We also explained the viewership, prestige, and industry expert confirmations of the following media outlets.
Harness Racing Victoria
Harness Racing Australia
Harness Racing New South Wales
Membership in a prestigious organization
We argue that the following achievements of the beneficiary satisfied these eligibility criteria:
Selection to Young Leaders Group by Harness Racing Australia. Harness Racing Australia is the national regulatory body for the sport and the award is chosen by the Executive Board, which is composed of industry insiders.
Significance and status of the organization: This is a select honor chosen by the leading regulatory body of harness racing in the country of Australia.
Exclusivity: Only six members out of all of the young riders in Australia were chosen.
Ranking: The beneficiary was selected as the leader out of all of the six member recipients.
Selection criteria: The beneficiary was selected due to the respect and position he commands within the industry. It was not for his education, paying a fee to the organization, or compulsory to employment.
Expert confirmation from industry expert Michael Radley:
Not only talented in his chosen profession as a horseman, but Todd has grown into an ambassador and a leader off the track for harness racing. Due to the respect and position Todd commands from within the industry by both participants and administrators, he was hand-selected to head up the inaugural ‘Young Leaders’ group for the national body Harness Racing Australia, which contains only six members and was established to give a voice to the next generation of participants.
Member of 2019 World Harness Racing Championships in Sweden
Significance and status of the organization: This is a selection by the national governing body of the sport to pick one rider of all the riders in the country of Australia to represent the country against twelve riders from all over the world.
Exclusivity: Only one rider per country is selected to participate in this race.
Ranking: The beneficiary was ranked as the number one candidate out of all of the top riders in the country to ride in the 2019 world championships in Sweden.
Selection criteria: The beneficiary was selected due to his outstanding accomplishments during the 2019 riding season and this is evidenced in publications that include quotes from the selection committee, which are included in the response to the request for evidence.
The publication remarks on the following attributes of the selection to the world championships:
Harness Racing Australia announces that current Australian driving champion, Todd McCarthy was selected as Australia’s representative. The distinction is awarded by the experts in the HRA Executive Office and only the very best drivers in the country are considered for the award. Only twelve drivers in total from all over the world compete for their country in the World Trotting Conference.
Selection to the Australasian Young Drivers Championship
Significance and status of the organization: This championship crowns the official top young harness racing driver in the southern hemisphere. The beneficiary is only the third driver from New South Wales to ever win this championship. Other noteworthy selections who won this championship include Peter Morris and Trevor Munday.
Exclusivity: There are only ten riders selected out of Australia and New Zealand per year to participate in this championship.
Ranking: The beneficiary ended up ranked as the number one candidate out of all of the top young riders in Australia and New Zealand.
Selection criteria: The selection for membership is made by industry experts in Harness Racing Australia and Harness Racing New Zealand, which both represent the top sanctioning bodies in their respective countries. Each Australian controlling body can invite one driver. A maximum number of participants can only be ten drivers.
The guidelines for the selection process were included with this petition.
3. Previous employment in a critical or essential capacity
We explained in our request for evidence that this critical role is evident from its overall impact on the organization or establishment.
Member of 2019 World Driving Championships in Sweden
Harness Racing Australia announces that current Australian driving champion, Todd McCarthy was selected as Australia’s representative. The distinction is awarded by the experts in the HRA Executive Office and only the very best drivers in the country are considered for the award. Only ten drivers in total from all over the world compete for their country with the World Trotting Conference. An article from Harnnessbred.com confirms the assertions and his membership with this championship.
Riding some of the best horses in the history of the sport
This satisfies the essential and critical capacity because these horses are worth considerable fortunes to their owners and they only trust the best riders in the sport to obtain the best results on their prized horses. Great results for prized horses help the owner recoup and profit for the tremendous investment spent on acquiring the horses and training the horses.
Evidence on the significance of the following horses and the beneficiary being employed to ride them in significant competitions are included with this petition.
Tiger Tara – New Zealand – Owners M Hawli, C L Pizzuto, K J Pizzuto, T N Pizzuto.
Maori Time – Australia – Holds the record for Australia fastest trotting horse over one mile and competed in Sweden’s biggest race the Elitloppet.
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Majordan – Australia – Multiple group winning pacer, known best for his gate speed and fast mile rates.
Member of 2019 World Driving Championships in Sweden, explained above in memberships in prestigious organizations
Representing and winning for New South Wales in the Young Drivers Championship, explained above in memberships in prestigious organizations
Remuneration
We also submitted an argument for remuneration, which means Todd was compensated more than other persons in his industry. We submitted an industry report from the United States Trotting Association that confirms the following:
Harness racing drivers earn ten percent of winnings.
The average harness racing driver earns $20,000 to $50,000. This is congruent with labor statistics originally submitted from websites recommended by USCIS, which include the following sources:
The Department of Labor’s Career One Stop http://www.careeronestop.org/SalariesBenefits/Sal_default.aspx;
The Department of Labor’s Office of Foreign Labor Certification Online Wage Library: http://www.flcdatacenter.com
The Bureau of Labor Statistics (BLS): http://www.bls.gov/bls/blswage.htm;
We are submitted evidence of the beneficiary’s winnings from recent years, ten percent of which reflects his compensation.
2018/2019 – Total stakes/winnings – $3,076.385 – 10% compensation – $307,638 (181,311.11 USD)
2017/2018 – Total stakes/winnings – $2,490,629 – 10% compensation – $249,062.9 (141,788.46 USD)
2016/2017 – Total stakes/winnings – $1,831,921 – 10% Compensation – $183,192 (107,966.98 USD)
Finally, we were able to bolster our arguments with excellent expert opinions from industry insiders. We would like to extend a special thank you to the following harness racing industry professionals
Michael J. Tanner – Executive Vice President of the United States Trotting Association (USTA), the official breed registry of the standardbred racehorse industry in the United States,
Michael Radley – Chief Executive of Gloucester Park Harness Racing, the premier harness racing track in Western Australia (WA),
Andrew Kelly – Chief Executive Officer of Harness Racing Australia (HRA) since 2008. HRA is the peak national body for the sport and business of harness racing in Australia,
Jason M. Settlemoir – General Manager of the Meadowlands Racing and Entertainment group (one of the premier harness racing venues in North America).
John Dumesny – Chief Executive, New South Wales Harness Racing (NSWHR). Mr. Dumsney has held an administrative role in the sport for a period of over forty (40) years.
Consultation letter from United States Trotting Association – Mike Tanner – Executive Vice President/Chief Executive Officer of the USTA
Sherrod Sports Visas is premier resource on P-1 and O-1 visas for Equestian Professionals, Horse Racers, and Horse Trainers, please call 704-243-8178.