dismissed EB-1A Case: Hair Styling

I identieing d3ta deleted to 
prcvc;li clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
sir 2. 
Office: NEBRASKA SERVICE CENTER Date: InAR 1 1 2009 
LIN 07 148 50940 
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 11 53(b)(1)(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. tj 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). 
%hn 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 hair, skin and nails salon. It seeks to employ the beneficiary permanently in the 
United States as a hair stylist.' 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: 
(I) 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 whch 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. tj 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 
' The petitioner was initially represented b 
 On August 14, 2008, the as expelled 
from practice before the Board of Immigration Appeals, Immigration Courts, and the U.S. Department of Homeland 
Security. In this decision, the term "previous counsel" shall refer to = 
Page 3 
achievements have been recognized in the field of expertise. Such evidence shall include 
evidence of a one-time achievement (that is, a major, intemational 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 intemational 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 April 23, 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 February 26, 2007 letter fiom the 
National Visa Center, Form ETA-750B, Statement of Qualifications of Alien, an employment 
reference letter from, and a March 30, 2007 letter from the petitioner. The initial 
submission also included an April 13, 2007 letter from previous counsel listing the documentation 
Page 4 
submitted, but previous counsel's letter did not specify the classification sought. On April 4, 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: 
In this appeal, it is respectfully submitted that the Petitioner had filled the Form for the 
position of a skilled worker (Hair Stylist with Soc Code 39-5012) for its business of a Beauty 
Salon (NAICS 812112) for an alien who had about 4 years of work experience as a Hair 
Stylist. The Petitioner had not given any indication in the 1-140 Form that the alien worker is 
a person of extraordinary ability. It therefore appears that the USCIS has erroneously 
categorized the said 1-140 Petition as for "an alien of extraordinary ability" and denied the 
Petition. 
Contrary to counsel's statement, the Form 1-140 petition received by the service center 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 another classification, the director properly adjudicated the petition pursuant to section 
203(b)(l)(A) of the Act. 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. 
With regard to counsel's request that the beneficiary now be considered for classification 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. Chertoff, Slip Copy, 2008 WL 2743927 (9th Cir. July 
10,2008). 
Furthermore, 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. 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 to classify the 
beneficiary as a skilled worker pursuant to section 203(b)(3) of the Act, then it must file a separate 
2 
 See http://www. whitehouse.gov/omb/circulars/a025/a025.hhnl. 
Page 5 
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. 5 204.5(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 visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.