dismissed EB-1A Case: Business

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
:l&s-lifying data deleted to 
preveiit clearly unwarranted 
 u. s. Citizenship 
invasion of personal privacy 
 and Immigration 
&A 
Office: NEBRASKA SERVICE CENTER 
 Date: APR 1 3 2009 
LIN 07 257 56935 
IN RE: 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(l)(i). 
&!I( @if, k-- 
/\ 9ohn F. Grissom 
.{- Acting Chief, Administrative Appeals Office 
DISCUSSION: The employrnent-based immigrant visa petition was denied by the Director, Nebraska 
Service Center. The petition is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 153(b)(l)(A), as an alien of extraordinary 
ability in business. The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(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 to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating that 
the individual is one of that small percentage who has risen to the very top of the field of endeavor. 8 
C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to establish that an alien has 
sustained national or international acclaim and recognition in his or her field of expertise are set forth in 
the regulation at 8 C.F.R. § 204.5(h)(3). 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a delivery route 
driver. The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as 
an alien of extraordinary ability. 
The Form 1-140, Immigrant Petition for Alien Worker, was filed concurrently with the beneficiary's Form 
1-485, Application to Register Permanent Residence or Adjust Status, on July 30, 2007. The petitioner 
checked box "a" under Part 2 of the Form 1-140 petition requesting classification as an alien of 
extraordinary ability. - on behalf of the petitioner, also signed the Form 1-140 under 
penalty of pedury, certifying that "this petition and the evidence submitted with it are all true and 
correct." With the petition, the petitioner submitted a copy of U.S. Department of Labor (DOL) Form 
ETA 750, Application for Alien Employment Certification, and a copy of a June 25, 2007 "Final 
Determination" letter fkom the DOL. The petitioner submitted no evidence to establish that the 
beneficiary met any of the criteria listed in 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel asserts: 
The petitioner wishes to employ the beneficiary as a delivery route driver as a skilled 
worker requiring at least two years of experience. Attached as Exhibit A is a copy of the 
original 1-140 form submitted to the Department of Homeland Security which shows that 
the petitioner checkted] off option "e" on Part 2. 
In support of this assertion, the petitioner submits a copy of a Form 1-140 that is clearly not the one contained 
in the record of proceeding which was submitted to USCIS for processing and received under USCIS receipt 
number LIN 07 257 56935. As indicated above, at Part 2, "Petition Type" of the Form 1-140 in the record 
of proceeding, the petitioner checked box "a," indicating that the petition was being filed for an alien of 
extraordinary ability. In Part 8, "Signature," the 
 is dated July 25, 2007 and signed by-1 
. In Part 9 of the petition, - signed as the individual who prepared the 
document. He also dated his signature as July 25,2007 and provided his e-mail address. 
The copy of the Form 1-140 submitted on appeal indicates that the petitioner checked block "e" on the 
petition, specifying that it was for a professional or skilled worker. Additionally, all of the information in 
Part 8 and Part 9 of the form differs from that on the petition actually filed with USCIS and contained in 
the record. The petitioner's printed name is not the same, his e-mail address is different, and the Form I- 
140 is dated "06/09/1971." Further, the signature block in Part 9 contains only the letters "WK" and 
contains no date and no e-mail address for Therefore, the AAO finds that the petitioner 
knowingly submitted an altered document in an effort to mislead USCIS and the AAO on an element 
material to the beneficiary's eligibility for a benefit sought under the immigration laws of the United 
States. See 18 U.S.C. $5 1001, 1546. The AAO is left to conclude that counsel and the petitioner made 
willful misrepresentations as to a material fact, in their attempt to obtain benefits under the Act for the 
alien beneficiary in violation of section 274C(a)(1),(2), and (5) of the Act, 8 U.S.C. 5 1324c(a)(1),(2), an 
(5) Under Board of Imgration Appeals (BIA) precedent, a material misrepresentation is one which 
"tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have 
resulted in a proper determination that he be excluded." Matter of S- and B-C-, 9 I&N Dec. 436,447 (BIA 
1961). Accordingly, the AAO hereby enters a finding of fraud. 
Notwithstanding the aforementioned fraud and material misrepresentation, we note that a change of 
classification will not be entertained for a petition that has already been adjudicated. A post-adjudication 
alteration of the requested visa classification constitutes a material change. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). In addition, the Ninth Circuit has 
1 
The Service reserves its right to provide formal notice to counsel and the petitioner of their respective 
violations of section 274C(a)(1),(2), and (5) of the Act, 8 U.S.C. 3 1324c(a)(1),(2), and (S), and to issue 
cease and desist orders with civil money penalties in accordance with section 274C(d)(3) of the Act, 8 
U.S.C. 5 1324c(d)(3). 
determined that once USCIS concludes that an alien is not eligible for the specifically requested 
classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an 
alternate classification. Brazil Quality Stones, Inc., v. Chertofi Slip Copy, 2008 WL 2743927 (9th Cir. 
July 10,2008). 
USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for a single petition 
with a single fee. The initial filing fee for the Form 1-140 covered the cost of the director's adjudication of 
the 1-140 petition under section 203(b)(l)(A) of the Act. Pursuant to section 286(m) of the Act, 8 U.S.C. 
5 1356, USCIS is required to recover the full cost of adjudication. In addition to the statutory 
requirement, Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all 
direct and indirect costs of providing a good, resource, or ser~ice.~ If the petitioner now seeks 
classification of the beneficiary as a skilled worker pursuant to section 203(b)(3)(A)(i) of the Act, then the 
petitioner must file a separate Form 1-140 petition requesting the new classification. There is no statute, 
regulation, or standing precedent that permits a petitioner to change the classification of a petition once a 
decision has been rendered by the director. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. Because the petitioner has attempted to procure a benefit under the Act through fraud, the 
beneficiary is inadmissible under section 212(a)(6)(C) of the Act. 
An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afd. 345 F.3d 683 (9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de 
novo basis. 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the 
powers which it would have in making the initial decision except as it may limit the issues on notice or by 
rule."). See also, Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's 
de novo authority has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden 
has not been met. 
ORDER: 
 The appeal is dismissed with a finding of hud and willful misrepresentation of a 
material fact. 
FURTHERORDER: The AAO finds that the petitioner knowingly submitted fraudulent 
documentation in an effort to mislead USCIS and the AAO on elements material 
to his eligibility for a benefit sought under the immigration laws of the United 
States. 
* See htt~:l/www.whiteho~~e.g~~/on~b/~ir~~la~l.