dismissed EB-1A Case: Construction

uS.-OiE-- 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203w l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1 1 53MI )(A) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Offioe in your case. AU documents have been returned to 
the office that originally decided your case. Any &her inquiry must be made to that office. 
RO~P- Wiemann, Chief 
Administrative Appeais Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO initially 
withdrew the director's decision and remanded the petition for further action and consideration. 
Subsequently, the AAO reopened the proceeding on its own motion. The appeai will be dismissed and the 
petition will redn denied. 
The petitioner is a construction company. It seeks to employ the beneficiary permanently in the United States as 
a mason.' The mtion was accompanied by certification from the Department of Labor. The central issue in 
this proceeding involves the classification sought. On Part 2 of the Form 1-140 petition, the petitioner 
checked box "a," indicating that it seeks to cIassifjl the beneficiary pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(bX l)(A), as an alien of extraordinary ability. The 
director determined that the petitioner had not established that the beneficiary qualifies for classification as an 
alien of extraordinary ability. 
In its first decision, dated February 25, 2008, the AAO erroneously remanded the petition for fwther action 
and consideration pursuant to section 203(b)(3) of the Act. On June 20, 2008, the AAO reopened the matter 
for purposes of entering a new decision. The AAO proposed to withdraw its initid decision, affm the 
director's denial pursuant to section 203(b)(l)(A) of the Act, and dismiss the appeal. The petitioner was 
provided a period of 30 days in which to respond to the AAO's motion. The AAO received the petitioner's 
response and it was incorporated into the tecord of proceeding. 
Upon review, the director's decision was proper under the law and regulations. As will be discussed in detail, a 
petitioner may not make material changes to a petition after adjudication in order to establish eligibility. 
Additiondly, the Act prohibits Citizenship and Immigration Services (CIS) 6om providing a petitioner with 
multiple adjudications for a single petition with a single fee. Finally, although counsel claims that he 
"erroneously" requested classification of a bricklayer as an alien "extraordinary ability in the sciences, arts, 
education, business, or athletics," the AAO notes that the error conveniently allowed the alien to concurrently file 
for adjustment of status and gave him the opportunity for work authorization when he would have been otherwise 
barred. 
Section 203(b) of the Act states, in pertinent part, that 
(1) Priority workers. -- Visas shall first be made available . . . b qualified immigrants who are aliens 
described in any of ihe following subparagraphs (A) thmugh (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 internationid acclaim 
and whose achievements have been recognized in the field through extensive 
documentation, 
The Form 1-140 petition was prepared by attorney 
 but the attorney failed to 
sign the Form G-28, Notice of Appearance of Attorney or Kepresentanve. 
(ii) the alien seek 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. 
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 have 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. 5 204,5(hX3): 
Initial evidence: A petition for an alien of extraordinary ability must be accompanied by evidence that 
the alien has sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement 
(that is, a major, international recognized award), or at least three of the following: 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of thc material, and any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of specification for which classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
tmde publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation; 
(ix) 
 Evidence that the alien has commanded a high salary or other sipificantly hi& 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, cumpact disk, or video sales. 
The Form 1-140, Immigrant Petition for Alien Worker, was filed concurrently with the beneficiary's Form 
I-485, Application to Register Permanent Residence or Adjust Status, on August 28, 2006. The petitioner 
checked box "a" under Part 2 of the Forrn 1-140 petition requesting classification as an alien of extraordinary 
ability. The petitioner also signed the Form I-140 under penalty of perjury, certifying that "this petition and 
the evidence submitted with it are all true and correct." The petition was accompanied by a July 7,2006 letter 
from the petitioner confirming its job offer to the beneficiary, copies of the beneficiary's U.S. Individual 
Income Tax Returns fiom 2003 through 2005, an April 27, 2006 Final Determination letter fiom the U.S. 
Department of Labor, and an Application for Alien Employment Certification, Form ETA-750, certified by 
the U.S. Department of Labor. The initial submission also included an August 16, 2006 letter hm the 
attorney who prepared the Forrn 1-140. The Mer listed the Fonn ETA-750 and the Final Determination 
Ietter, but did not specify the classification sought. On November 7, 2006, the director denied the petition 
finding that the petitioner had not established that the beneficiary meets the statutory and regulatory 
requirements for classification as an alien of extraordinary abiIity. 
On appeal, the petitioner submitted a November 27,2006 letter fiom the attorney who prepared the Form 1-140 
stating: "The selection in Part 2 a was made emneously and we respectfully ask that the selection of 'An Alien 
of Extraordinary Ability' in Part 2 Section a. be changed to Section e. 'A professional (at a minimum, possessing 
a bachelor's degree . . . ) or a skilled worker (requiring at least two years of specialized training or experience)."' 
Thus, the attomey who prepared the Form 1-140 requested on appeal that the petition now be adjudicated 
pursuant to section 203(b)(3) of the Act. As discussed, the AAO erroneously issued a February 25, 2008 
decision remanding the petition to the director for consideration under section 203(bX3) of the Act. On June 20, 
2008, the AAO reopened these proceedings on its own motion and proposed to withdraw its initial decision, 
affirm the director's denial pursuant to section 203(b)(l)(A) of the Act, and dismiss the appeal. 
In response, the petitioner submitted a brief from counsel and an April 17,2007 Request for Evidence (RFE) 
issued by the Nebraska Service Center in a separate matter unrelated to the instant petition.2 Counsel argues 
that the petitioner should be permitted to change classifications stating: 
It is our understanding that Director's decision was not in error, however it was already demonstrated 
in previous cases that the Petitioner was allowed to make corrections when Director would notice that 
based on submission of an approved labor certification a petitioner may have in fact inadvertently 
checked the incorrect classification on Part 2 of Form 1-140. Consequently, a petitioner would be 
asked to verifi and inform the Service of Petitioner's correct intended classification. 
The burden is on the petitioner to select the appropriate classification rather than to rely on the director to 
infer or second-guess the petitioner's intended classification. As discussed, the Form 1-140 petition 
was clearly marked under Part 2 as a petition filed for classification as "[aln alien of extraordinary ability." 
The petitioner signed the Form 1-140 under penalty of perjury, attesting that the informattion on the form was 
The WE states: "[Tlhe submission of an approved labor certification indicates that you may have inadvertently 
checked the incorrect classification on Part 2 of the 1-140. Please verify this and infonn this Service of your correct 
intended classification." 
Page 5 
correct. As the petition was unaccompanied by instructions from previous counsel or the petitioner specifying 
otherwise, the director properly adjudicated the petition pursuant to section 203(b)(l)(A) of the Act. Further, 
as counsel acknowledged that the "director's decision was not in error," the petitioner is precluded from 
requesting a change of classification on appeal. A request for a change of classification will not be entertained 
for a petition that has alreedy 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 CIS requirements. See Matter of inanmi, 22 l&N Dec. 169, 176 (Assoc. Comm. 
1998). In addition, the Ninth Circuit has determined that once CIS concludes that an alien is not eligible for 
the specifically requested classification, the agency is not required to consider, sua spone, whether the alien 
is eligible for an alternate classification. Brazil Quality Stones, Inc., v. Cherto8, Slip Copy, 2008 WL 
2743927 (9' Cir. July 10,2008). 
Furthermore, CIS is statutorily prohibited hm 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. Pursuant to section 286(m) of the Act, 8 U.S.C. 5 1356, CIS 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 CIS recover all direct and indirect costs of providing a good, 
resource, or service.) If the petitioner now seeks to classify the beneficiary as a skilled worker pursuant to 
section 203(b)(3) of the Act, then it must file a separate Form 1- 140 petition requesting the new classification. 
On appeal and in response to the AAO's motion, counsel has cited 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. 
Counsel argues that the April 17, 2007 RFE submitted in response to the Am's motion "verifies that a 
petitioner is able to make material changes to a petition when the classification was checked by error, not by 
making 'a deficient petition conform to CIS requirements."' Counsel has furnished no evidence to establish 
that the facts of the instant petition are analogous to those of the case in which the director issued the April 
17, 2007 WE. While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding: Further, the 
AAO's authority over the service centers is comparable to the relationship between a court of appeals and a 
district court. With regard to the separate matter in which the April 17,2007 RFE was issued, the AAO is not 
bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orches~a v. INS, 
2000 WL 282785 (E.D. La.), afd, 248 F.3d 1 139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
On page 5 of his brief, counsel cites to a rule promulgated by CIS relating to the issuance of requests for 
evidence and notices of intent to deny. The final rule at 72 Fed. Reg. 19100 (April 17,2007)~ states: 
This rule . . . describes the circumstances under which U.S. Citizenship and Immigration Services will 
issue a Request for Evidence or Notice of Intent to Deny before denying an application or petition, 
but United States Citizenship and Immigration Services will continue generally to provide petitioners 
and applicants with the opportunity to review and rebut derogatory information of which he or she is 
unaware. 
' See http://www.whitehouse.gov/omb/c~culardaO25/aO25.html. 
This rule became effective on June 18,2007, aper the filing and adjudication of this petition. 
Page 6 
A Notice of Intent to Deny (NOID) is a written notice issued by USCIS to an applicant or petitioner 
that USCIS has made a preliminary decision to deny the application or petition. A NOID may be 
based on evidence of ineligibility or on derogatory information known to USCIS, but not known to 
the petitioner or applicant. USCIS cannot, however, issue a NOD based on missing initial evidence 
if an RFE has not first been issued. The NOID provides the applicant or petitioner with an 
opportunity to inspect and rebut the evidence forming the basis of the decision to deny the petition or 
application. 
Counsel argues that the director should not have denied the petition without first issuing a WE or a NOID 
stating: 
Based on the above, a Notice of Intent to Deny was never submitted with the Petitioner that USCIS 
has made a preliminary decision to deny the Petition that would be based on evidence of ineligibility 
or on derogatory information known to USCIS, but not known to the Petitioner. And as per the rule 
the U.S. Citizenship and Immigration Service cannot, however, issue a Notice of Intent to Deny based 
on missing initial evidence if a Request for Initial Evidence has not fmt been issued. Consequently, 
the Director should not deny the Petition if even the Request for Initial Evidence has not been issued 
at all and would have been provided the Petitioner with an opportunity to inspect and rebut the 
evidence forming the basis of the decision to deny the Petition. 
Counsel does not specifL the "derogatory information known to USCIS, but not known to the petitioner." We 
note that the director's denial of the petition was based solely on the documentation submitted by the 
petitioner. Further, with regard to "evidence of ineligibility," the regulation then in effect at 8 C.F.R. 
§ 103.2(b)(8) (2006), provided in pertinent part: "If there is evidence of ineligibility in the record, an 
application or petition shall be denied on that basis notwithstanding any lack of required initial evidence." 
The current regulation at 8 C.F.R. 9 103.2(b)(8)(i) provides in pertinent part: 
 "If the record evidence 
establishes ineligibility, the application or petition will be denied on that basis." 
 Further, 8 C.F.R 
8 103.2(b)(8)(ii) provides in pertinent part: 
 "If all required initial evidence is not submitted with the 
application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or 
petition for lack of initial evidence or for ineligibility . . . ." 
Thus, the director is not required to issue a RFE or a NOD in every potentially deniable case. lf the director 
determines that the initial evidence supports a decision of denial, the regulation at 8 C.F.R. 5 103.2(b)(8) does 
not require solicitation of hrther documentation. 
Finally, the concment filing of the Form 1-140 and the Fom 1-485 raises an additional issue regarding the 
petitioner's request for a change of classification to skilled worker pursuant to section 203(b)(3) of the Act, 
and further supports a conclusion that the petitioner sought to classifL the beneficiary under section 
203(b)(l)(A) of the Act. 
Page 7 
me regulation at 8 C.F.R. § 245.l(g)(1) states, in pertinent part: "An alien is ineligible for the benefits of 
section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the 
application is filed." 
The regulation at 8 C.F.R. $245.2(aX2) states, in pertinent part: 
Proper filing of application -- 
(i) Under section 245. (A) An immigrant visa must be immediately available in order for an 
alien to properly file an adjustment application under section 245 of the Act See 8 245.1(g)(l) 
to determine whether an immigrant visa is immediately available. 
(B) If, at the time of filing, approval of a visa petition filed for classification under section 
20 l(b)(Z)(A)(i), section 203(a) or section 203(b)(l), (2) or (3) of the Act would make a visa 
immediately available to the alien beneficiary, the alien beneficiary's adjustment application 
will be considered properly filed whether submitted concurrently with or subsequent to the 
visa petition, provided that it meets the filing requirements contained in parts 103 and 245. 
For any other classificationy the alien beneficiary may file the adjustment application only 
after the Service has approved the visa petition. 
(C) A visa petition and an adjustment application are concurrently filed only if: 
(1) The visa petitioner and adjustment applicant each file their respective form at the 
same time, bundled together within a single mailer or delivery packet, with the proper 
filing fees on the same day and at the same Service office, . . . . 
The above regulations require that an immigrant visa be immediately available for concurrent filings of Form 
I- 140s and Form 1-485s submitted for those seeking classification pursuant to section 203@)(1), (2) or (3) of 
the Act. The Form 1-140 petition was filed concwently with the beneficiary's Form 1-485 on August 28, 
2006. The beneficiary checked box "a" under Part 2 of the Form 1-485 application to indicate that he was 
filing the petition on the basis of "an immediately available immigrant visa number.' However, at that time, 
no immigrant visas were immediately available for third-preference skill4 workers with priority dates after 
October 1, 2001.~ Therefore, based on a priority date of September 19, 2002, the petitioner and the 
beneficiary were ineligible to concurrently file the Form 1-485 application for adjustment with the Form 1-140 
petition. If the Form 1-140 and Form 1-485 are filed together with separate fees (as in the present case) and 
there is no visa currently available, the Form 1-140 and fee shall be accepted, but all relating Form 1-485s and 
ancillary applications shall be rejected.' Thus, if previous counsel had initially chccked box "em for 
The beneficiary also submitted a Supplement A to Form 1-485 in order to adjust his status under section 245(i) of the 
Act because he is the beneficiary of an application for a labor certification filed on or before January 14, 1998. 
However, the only labor certification in the A-file record of proceeding has a priority date of September 19,2002. 
See h~://travel.state.gov/visd~i~b~1letin~bullet~l. The priority date for the 1-140 petition in this case is 
September 1 9,2002. 
See Interoffice Memorandum from William Yates, Associate Director of Operations, Regression of E31 and E32 Visa 
Numbers for Applicants porn Mainland China and Rescission of March 31, 2004 Policy Memo re: Concurrent 
classification as a skilled worker, the beneficiary's Form 1-485 would have been rejected by the service 
center. However, as previous counsel for the petitioner checked box "a" for classification as an alien of 
extraordinary ability, the service center accepted the beneficiary's 1-485 on August 28, 2006 because at that 
time immigrant visas for section 203(b)(l)(A) of the Act were current for all countries but India! Counsel 
offers no rebuttal to the preceding observations that were discussed in the AAO's motion. 
In this matter, the petitioner's appellate submission and response to the Am's motion do not address the 
beneficiary's eligibility pursuant to section 203 (b)(I)(A) of the Act. With regard to regulatory requirements at 
8 C.F.R. $ 204.5(h), the petitioner has not specifically challenged the reasons stated for denial and has not 
provided any additional evidence to overcome the director's decision. 
Review of the record does not establish that the beneficiary has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small percentage 
at the very top of his field. The evidence is not persuasive that the beneficiary's achievements set him 
significantly above almost all others in his field at a national or international level. Therefore, the petitioner 
has not established the beneficiary's eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not sustained that burden. 
Order: 
 The appeal is dismissed. The petition remains denied. 
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Adjudication of Concurrently Filed Form 1-140s and Form 1-485s (December 29,2004). With regard to remittance of a 
single check for multiple filings, if the alien's priority date is not current at the time of those filings, then all filings shall 
be rejected. 
see h~://tnlvel.stPe.gov/visa/frvi/t,~lletin/,