dismissed EB-1A Case: Machine Shop

(dentify ing data deleted 
j ,revent clearly unwzura~'&teb 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
EAC 04 231 50579 
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. fj 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Ths 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. 
.tl&~~( ~~31 @du i/c 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The employment-based immigrant visa petition was initially denied by the Director, 
Vermont Service Center for abandonment. The director reopened the matter on the petitioner's motion, and 
denied the petition again. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner, a machine shop, seeks to classify the beneficiary 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. The director determined the petitioner had not established that the beneficiary has 
earned the sustained national or international acclaim necessary to qualify 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 ths 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. 
As used in tlvs 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 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; 
Page 3 
(ii) Documentation of the alien's membership in associations in the field for whch classification 
is sought, whch require outstanding achevements of their members, as judged by recognized 
national or international experts in their disciplines or fields; 
(iii) Published materials 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 whch 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 ehbitions 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 August 5, 2004. Part 6 of the Form 1-140 
petition did not identify the beneficiary's job title or provide information about his proposed employment. In 
support of the petition, the petitioner submitted its U.S. Income Tax Returns for 2001 and 2002. The petition 
was unaccompanied by evidence demonstrating the beneficiary's sustained national or international acclaim 
and that hs achievements have been recognized in his field of expertise. 
On October 21, 2005, the director issued a notice of intent to deny informing the petitioner of the deficiencies 
in the record and requesting evidence pertaining to the regulatory criteria at 8 C.F.R. 4 204.5(h)(3).' 
The petitioner failed to respond to the director's notice of intent to deny. Therefore, on February 27, 2006, 
the director denied the petition, finding that the petitioner had not established the beneficiary's eligibility for 
the benefit sought. 
On appeal, counsel states: 
The record includes a copy of this notice showing that it was addressed to counsel. 
Page 4 
I request 60 days to provide you with additional evidence. The Vermont Service Center made an 
error by denying this petition. It failed to elaborate the clear reasons for denial. It merely quoted the 
pertinent provisions of the status [sic] and regulations without requesting additional documentation. 
It is a reversible error and completely against the legal procedures and appropriate legal sources. By 
its own regulations, the USCIS is required by law to request additional evidence withn twelve weeks. 
Counsel's statements regarding the director's decision do not appear relevant to the facts of this case. The ten 
regulatory criteria cited in the director's notice of intent to deny specifically identified the types of "initial 
evidence" required for classification as an alien of extraordinary ability. On October 21, 2005, the petitioner 
was put on notice of required evidence and given a reasonable opportunity to provide it for the record before 
the visa petition was adjudicated. The petitioner failed to submit the requested evidence and now requests the 
opportunity to submit such evidence on appeal. Where, as here, a petitioner was put on notice of deficiencies 
in the record and was given an opportunity to respond to those deficiencies, the AAO will not accept evidence 
offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted certain evidence to be considered, it 
should have submitted that evidence in response to the director's notice of intent to deny. In this matter, the 
appeal will be adjudicated based on the record of proceeding before the director. 
The petitioner's appeal was filed on March 20, 2006. On the Form I-290B, Notice of Appeal to the AAO, 
counsel indicated that a brief and/or evidence would be submitted to the AAO with 60 days. As of this date, 
more than fourteen months later, the AAO has received nothng further. 
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 sustained 
acclaim necessary to qualify as an alien of extraordinary ability. 
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 withn the small percentage at 
the very top of his field. The evidence is not persuasive that the beneficiary's aclvevements set him significantly 
above almost all others in his field at the 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. 
Beyond the decision of the director, the regulation at 8 C.F.R. $ 204.5(h)(5) requires "clear evidence that the 
alien is coming to the United States to continue work in the area of expertise. Such evidence may include 
letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the 
United States." The record includes no such evidence. 
An application or petition that fails to comply with the techcal requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.