dismissed EB-1A Case: Culinary Arts

identifying data de!eted to 
pwien; clearby un~aaranted 
invasion of personal privac) 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
LIN 07 162 52309 
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. 8 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. § 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. 
 103.5(a)(l)(i). 
u 
phn F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a 
French-style cook.' The petition 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 classify the beneficiary 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 petitioner had not established that 
the beneficiary qualifies 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 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(h)(3): 
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 
represented by. In this decision, the term "previous counsel" 
shall refer 
Page 3 
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 the 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 trade 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 significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The Form 1-140, Immigrant Petition for Alien Worker, was filed on May 16,2007. Previous counsel 
checked box "a" under Part 2 of the Form 1-140 petition requesting classification as an alien of 
extraordinary ability. The petition was accompanied by a November 30, 2006 employment 
reference letter, copies of the petitioner's tax Returns for 2001 through 2005, an April 9, 2007 Final 
Determination letter from 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 a May 8, 2007 letter from previous counsel listing the documentation submitted, but 
Page 4 
previous counsel's letter did not specify the classification sought. On ~e~tkmber 30, 2008, 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 ability. 
On appeal, counsel states: 
THE 1-140 WAS DENIED BASED ON AN ERROR OF FACT. 
 THE PETITIONER, 
THROUGH HIS REPRESENTATIVE AT THE TIME, MISTAKENLY CHECKED OFF 
THE WRONG BOX IN SECTION PART 2 OF THE 1-140 FORM INDICATING THAT 
THE PETITION WAS FILED UNDER SUBSECTION A. (AN ALIEN OF 
EXTRAORDINARY ABILITY) INSTEAD OF SECTION E., (SKILLED WORKER). THE 
LABOR CERTIFICATION REVEALS THAT THE PETITIONER WAS SEEKING A 
BENEFICIARY TO FILL A SKILLED POSITION. THE PETITIONER WAS NEVER 
PROVIDED AN OPPORTUNITY TO EXPLAIN THIS DISCREPANCY EVEN THOUGH 
THE ERROR WAS OBVIOUS. THE USCIS HAS A POLICY OF AT LEAST 
REQUESTING ADDITIONAL EVIDENCE ONCE BEFORE DENYING A MATTER. 
HAD THE PETITIONER BEEN PROVIDED NOTICE OF THE ERROR, HE WOULD 
HAVE CORRECTED IT IMMEDIATELY. . . . WE ARE REQUESTING THAT THE 
SERVICE ACCEPT ADDITIONAL INFORMATION INCLUDING AN AMENDED I- 140 
AND PROOF THAT THE BENEFICIARY HAS THE NECESSARY EXPERIENCE. WE 
RESPECTFULLY REQUEST THAT THE APPEAL AND THE NEW EVIDENCE BE 
CONSIDERED SINCE THE PETITIONER WAS NOT PROVIDED THE MINIMUM 
STATUTORY AND DUE PROCESS FOR THE ADJUDICATION OF THE 1-140 
APPLICATION. 
The petitioner's failure to properly identify the classification sought does not allow it the opportunity to 
later change classifications at the appellate stage. 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. In this case, the service center received an 1-140 petition that 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 information on the form was 
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. 
With regard to counsel's comment that the petitioner was not afforded an opportunity to address the 
error, the regulation at 8 C.F.R. Ej 103.2@)(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. 
Ej 103.2@)(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 request for evidence or notice of intent to deny in every potentially deniable case. 
If the director determines that the initial evidence supports a decision of denial, the regulation at 
8 C.F.R. Ej 103.2(b)(8) does not require solicitation of further documentation. 
With regard to the petitioner's request for consideration as a skilled worker pursuant to section 
203(b)(3) of the Act, a request for 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 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). 
Furthermore, USCIS is statutorily prohibited fiom 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. 8 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 ~ervice.~ 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, 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. 
In this matter, the petitioner's appellate submission did not address the beneficiary's eligibility pursuant 
to section 203(b)(l)(A) of the Act. With regard to regulatory requirements at 8 C.F.R. 8 204.5(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. Counsel indicated that a brief and/or 
evidence would be submitted to the AAO within 30 days. The appeal was filed on October 27,2008. 
As of this date, more than three months later, the AAO has received nothing further. 
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 visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
2 
See httv://www.whitehouse.gov/omb/circulars/l, copy incorporated into the record of proceeding.