dismissed EB-1A Case: Fine Art

PUBLIC COPY 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal prjvacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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: 
SELF-REPRESENTED 
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). 
Ah(917 
f- John F. Grissom, Acting Chief 
Administrative ~~~eals-~ffice 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Vermont 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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. 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. 8 
204.5(h)(3). 
This petition seeks to classifL the petitioner as an alien with extraordinary ability as a fine artist. 
The regulation at 8 C.F.R. 8 204.5@)(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 
Page 3 
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. 
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. § 204.5(h)(3). 
On appeal, the petitioner asserts: 
[W]e submit that the decision in this case is incorrect because we never claimed 
that the beneficiary fit into the category of an ["lalien of extraordinary ability." 
We did not so indicate on the 1-140 petition. The petitioner was accompanied by 
an approved labor certification application that had been certified by the 
Department of Labor. The Labor Certification papers state quite clearly that the 
person is the certified position requires at last two years of experience in the field. 
The decision of the Director is predicated upon the beneficiary's failure to qualifl 
as an alien of extraordinary ability. Persons qualifying in that category are exempt 
from the Labor Certification requirement. However, in this case, we submitted an 
approved Labor Certification. Why would we have gone to all the trouble of 
processing a Labor Certification if we had determined that the beneficiary was an 
alien of extraordinary ability? The answer is that we would not. 
Nonetheless, at Part 2, "Petition Type" of the petitioner's Form 1-140, Immigrant Petition for Alien 
Worker, the petitioner checked box "a," indicating that the petition was being filed for an alien of 
extraordinary ability. 
USCIS is statutorily prohibited fi-om 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. 3 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 
skilled worker pursuant to Section 203(b)(3)(A) of the Act, then the petitioner must file a 
separate Form I- 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. 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 
I 
 See http:l/www.whitehouse.nov/omblcircularslaO25laO25.html [accessed on January 30,2009 and incorporated 
into the record of proceeding. 
Page 4 
classification. Brazil Quality Stones, Inc., v. Chertoff; Slip Copy, 2008 WL 2743927 (9~ Cir. 
July 10,2008). 
Based upon a review of the record of proceeding, the petitioner has failed to submit evidence 
which demonstrates that the beneficiary is an alien of extraordinary ability and therefore has 
failed to establish that the beneficiary meets the requirements of the classification sought on the 
Form 1-140 under section 203(b)(l)(A) of the Act. 
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.