dismissed EB-1A Case: Asphalt Sealer

U.S. Department af Homeland Security 
20 Mass. Ave.. N.W.. Km. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
Services 
FILE: , WAC 04 053 5 1294 Office: CALIFORNIA SERVICE CENTER Date: JUC 1 3 
IN RE: Petitioner: 
Beneficiary 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l )(A) of the Immigration and Nationality Act, 8 U.S.C. 4 1 1 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ecided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 053 5 1294 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner sought classification of the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of 
extraordinary ability. The director determined that the record did not establish the sustained national or 
international acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The applicable regulation defines the statutory term "extraordinary ability" as "a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 
8 C.F.R. 5 204.5(h)(2). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. 5 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a major, 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
In this case, the petitioner sought classification of the beneficiary as an alien with extraordinary ability as an 
asphalt sealer supervisor. The petitioner submitted a copy of the beneficiary's birth certificate, but no evidence 
to support the beneficiary's eligibility for classification as an alien with extraordinary ability. The director 
determined that the record was insufficient to fulfill any of the regulatory criteria at 8 C.F.R. fj 204.5(h) to 
demonstrate the requisite sustained acclaim and also did not establish that the beneficiary's entry into the United 
States would substantially benefit prospectively this country as required by section 203(b)(l)(A)(iii) of the Act, 
8 U.S.C. 9 1 153(b)(l)(A)(iii). 
On appeal, the petitioner explains that the Form 1-140 originally filed mistakenly indicated the wrong 
classification for the beneficiary. The petitioner submits a new Form 1-140 on appeal under the classification of 
a skilled worker, but without the required labor certification. The petitioner cannot amend a petition on appeal 
WAC 04 053 5 1294 
Page 3 
to seek classification under a different section of the Act. In addition, a petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matrer of 
Izummi, 22 T&N Dec. 169, 176 (Assoc. Comm. 1998). Accordingly, we do not consider the petitioner's new 
Form 1-140 submitted on appeal. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. $ 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The petitioner in 
this case submitted no evidence that the beneficiary, as an asphalt sealer, is an alien of extraordinary ability in 
the sciences, arts, education, business or athletics. Moreover, the record contains no documentation that the 
beneficiary has achieved sustained national or international acclaim as an asphalt sealer placing him at the very 
top of his field. He is thus ineligible for classification as an alien with extraordinary ability and the petition may 
not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.