dismissed EB-1A Case: Fence Carpenter

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
-- - - 
LIN 08 048 50644 
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. 9 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. 
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. 
5 103.5(a)(l)(i). 
F 
Pen-y Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-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. 1153(b)(l)(A), as an 
alien of extraordinary ability. The director determined the petitioner had not established that the 
beneficiary's field of endeavor qualifies under 203(b)(l)(A) of the Act or that the beneficiary has 
the "requisite 'extraordinary ability' in the field." 
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. 
4 204.5(h)(3). 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a fence 
carpenter. The regulation at 8 C.F.R. 5 204.5(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 on November 29, 2007. 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 pe jury, 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. The petitioner submitted no 
evidence that the beneficiary met any of the criteria listed in 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel states that the petitioner seeks to classify the beneficiary under section 
203(b)(3)(A)(i) of the Act as a skilled worker, "[hlowever, due to a typographical error, the 
petitioner inadvertently marked the box to classify [the beneficiary] as an alien of extraordinary 
ability (letter 'a' of Part 2 of said application)." Counsel then asserts that "the approval of the 1-140 
petition should not be precluded by the fact that the petitioner erroneously marked the wrong visa 
classification on [the] petition." The petitioner submits an "amended" Form 1-140 on appeal. 
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." As the petition was unaccompanied by instructions from counsel or 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. 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. Comrn. 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. Chertoff, 286 Fed. Appx. 963 (9th 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, or service.' If the petitioner now seeks classification of the beneficiary as a 
1 
See htt~://www.whitehouse.gov/omb/circulars/aO25/aO25 .htrnl. 
skilled worker pursuant to section 203(b)(3)(A)(i) of the Act, then the petitioner must file a 
separate Form 1-140 petition, with the accompanying fee, requesting the new classification. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. fj 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.