dismissed EB-1A Case: Delivery-Route Driver

identifying data deleted to 
prevent clearly unwmmted 
invasion of personal privaq 
lRn3LK: COPY 
1I.S. Departmrr~t of Hon~eland Sccurity 
U.S. Citizenship and lmmigration Services 
Office ofAdt?1ii7i.strulive Appecrls MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER 
LIN 07 257 56935 
 Date: JAN 1 3 2010 
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. 9 1 153(b)( 1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All docu~nents 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. 9 103.5 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. 3 103.5(a)(l)(i). 
$&dhlk Perry Rhew 
f chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal and entered a 
separate finding of fraud and material misrepresentation. The petitioner has filed a motion to 
reconsider, seeking a reversal of the finding of fraud and material misrepresentation, and consideration 
of the petition under a different classification. The AAO will grant the petitioner's motion and 
withdraw the finding of fraud and material misrepresentation. However, the remaining grounds for 
denial cited in the AAO's appellate decision will be affirmed, and the petition will remain denied. 
The petitioner seeks to employ the beneficiary permanently in the United States a delivery-route driver. 
On Part 2 of the Form 1-140, Immigrant Petition for Alien Worker, 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. $ 1153(b)(l)(A), as an alien of extraordinary 
ability.' The director determined that the petitioner had not submitted evidence demonstrating the 
beneficiary's eligibility for the classification sought. The AAO affirmed the director's finding on 
appeal and entered an additional finding of fraud and material misrepresentation. 
On motion, counsel states: 
The petitioner . . . and the beneficiary . . . should not have to suffer the immense consequences 
for an error that occurred in the handling of the 1-140 Petition by his previous counsel's staff. 
Petitioner sought to apply legitimately under the category of "skilled worker," as that was the 
case when his labor certification process began on April 30,2001, over 8 years ago. Due to the 
apparent error by previous counsel. the petitioner has now suffered the consequences without 
intentionally causing them. Petitioner has sustained a great burden in legal fees, application 
fees, Labor Certification costs, and a processing time of 8 years for the application finally to be 
reviewed by USCIS [U.S. Citizenship and Immigration Services]. 
In consideration of . . . the [petitioner's] true intention for classification, the petitioner 
respectfully requests reconsideration . . . and a re-opening of the matter for analysis of the 1-140 
Petition. 
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 Form 1-140 petition was prepared and submitted by In this decision. the term 
"previous counsel'' shall refer to- 
(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. 
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 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. § 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 
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 July 30,2007. With the petition, 
the petitioner submitted a June 25, 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 AAO and the director found that the petitioner had submitted no 
evidence demonstrating that the beneficiary had met any of the regulatory criteria listed in 8 C.F.R. 
5 204.5(h)(3). 
In this case, the petitioner has failed to demonstrate the beneficiary's receipt of a major, 
internationally recognized award, or that he meets at least three of the criteria that must be satisfied 
to establish the national or international acclaim necessary to qualify as an alien of extraordinary 
ability. 
 8 C.F.R. 5 204.5(h)(3). 
 Further, the submitted documentation does not distinguish the 
beneficiary as one of the small percentage who has risen to the very top of the field of endeavor. 
8 C.F.R. 5 204.5(h)(2). 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. 
With regard to the AAO's finding of fraud and material representation, counsel had stated on appeal 
that: 
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 I- 
140 form submitted to the Department of Homeland Security which shows that the petitioner 
check[ed] off option "e" on Part 2. 
In support of counsel's assertion, the petitioner submitted a copy of a Form 1-1 40 that was 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 petition is 
dated July 25, 2007 and signed by 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 indicated that the petitioner checked block "en 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 differed from that on the petition actually filed with 
USCIS and contained in the record. The petitioner's printed name was not the same, his e-mail 
address was different, and the Form 1-140 was dated "06/09/1971." Further, the signature block in 
Part 9 contained only the letters 
 and contained no date and no e-mail address for 
Therefore, the AAO found that 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. 
§§ 100 1, 1546. Accordingly, the AAO entered a finding of fraud and material misrepresentation. 
On motion, counsel states: 
Petitioner[']s current counsel . . . substituted in as counsel for Petitioner . . . and alien [the 
beneficiar due to the retiring of Petitioner's previous attorney,-. 
If office made an error in the filing of the 1-140 [petition] for Avalon Tent & 
Party by originally categorizing the petitioner to that of a Category "A," Alien of 
Extraordinary Ability, instead of the correct classification of Category "E," a Skilled Worker, 
~ ~ 
that was simply a typographical error. The [petition] submitted on appeal by my office was 
furnished by In receipt of the original file and in counsel's haste to 
quickly conclude that this was an obvious error in the determination of the Nebraska Service 
Center, the corrected version of the application was construed as the original. The evidence 
of the approval of the "Final Determination" from the DOL, led me to believe that the path of 
skilled worker under category "E," and not that of Category "A" was the relevant 
classification as that is the classification of the submitted Labor Certification. 
Plaintiffl'ls current counsel, misinterpreted the corrected version of the 1-140 as a copy 
A - 
provided by , as-the original 1-140 submitted to the Nebraska Service 
Center, and therein led to the appeal by counsel . . . in particular arguing that there was an 
error made by USCIS. 
Counsel's explanation that the amended version of the Form 1-140 submitted on appeal was an 
unintentional error caused by the substitution of counsel is plausible. Accordingly, our finding of 
fraud and material misrepresentation in the appellate decision is hereby withdrawn. 
Although we withdraw our finding of fraud and material misrepresentation, we affirm our appellate 
findings that the petitioner has not established the beneficiary's eligibility pursuant to section 
203(b)(l)(A) of the Act and that the petitioner is precluded from requesting a change of classification 
Page 6 
once a decision has been rendered by the director. On motion, counsel states: "The petitioner in this 
case, never intended for the use of an alien of extraordinary ability." While the documentation 
initially submitted in this case may be consistent with a different immigrant visa 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 previously discussed, the petitioner 
checked box "a" under Part 2 of the Form 1-140 petition requesting to classify the beneficiary as an 
alien of extraordinary ability. The petitioner also signed the Form 1-140 under penalty of perjury, 
certifying that "this petition and the evidence submitted with it are all true and correct." As the 
petition was unaccompanied by instructions from the petitioner specifying otherwise, the director 
properly adjudicated the petition pursuant to section 203(b)(l)(A) of the Act. 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. Further, 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. Chertofj 286 Fed. Appx. 963 (9'" Cir. July 10,2008). 
Moreover, 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, 
2 
or service. 
 If the petitioner seeks classification of the beneficiary under a different immigrant visa 
classification, then the petitioner must file a separate Form 1-140 petition, with the accompanying 
fee, requesting the new classification. 
ORDER: 
 The AAO withdraws its April 13, 2009 finding of fraud and material misrepresentation. 
The remaining grounds for denial in the AAO's appellate decision are affirmed, and the 
petition will remain denied. 
'See htt~:~~~~v~y~..~vl~itt'h~~usc~~~v!onl~.h~n~l.