dismissed EB-1A Case: Research

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: - Office: NEBRASKA SERVICE CENTER Dat-B 1 1 2009 
LIN 08 007 58844 
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)(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. !j 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. 8 103.5(a)(l)(i). 
John F. ~rissoy ~cting Chief 
Administrative Appeals Office 
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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 seeks employment in the United States as a research associate. 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 he seeks classification pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. !.j 1153(b)(l)(A), as an alien of extraordinary 
ability. The director determined that the petitioner had not established that he meets the statutory and 
regulatory requirements 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 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 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. !.j 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. !.j 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; 
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(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 October 9, 2007. Counsel 
checked box "a" under Part 2 of the Form 1-140 petition requesting classification as an alien of 
extraordinary ability. On September 12, 2008, the director denied the petition finding that the 
petitioner had not established the sustained national or international acclaim necessary to qualify for 
classification as an alien of extraordinary ability. More specifically, the director found that the 
petitioner had failed to demonstrate receipt of a major, internationally recognized award, or that he 
meets at least three of the criteria at 8 C.F.R. fj 204.5(h)(3). 
On appeal, counsel states: 
In error, the 1-140 requested classification as an alien of extraordinary ability. 
 The 
supporting documents and evidence submitted supported the outstanding researcher category. 
.*- 
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We request that his classification be changed to an outstanding researcher and the petition be 
re-considered as such. 
The Service's denial of the beneficiary's 1-140, Petition for Immigrant Worker, was based on 
his failure to document that he satisfied the requirements for an alien of extraordinary ability. 
The beneficiary's 1-140, however, this [sic] was in error. Instead, the box indicating 
classification as an outstanding researcher should have been checked. 
The petitioner respectfully requests the Service to use its broad discretion to vacate its 
Decision and process his petition as one for an outstanding researcher, a classification he is 
clearly qualified for. 
The petitioner's appellate submission was accompanied by a September 26, 2008 letter fiom the 
Boston University School of Medicine stating that he is employed there as a research associate. 
The petitioner's failure to properly identifl the classification sought does not allow him 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. In this case, the service center received an 1-140 petition that 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. Thus, the director properly adjudicated the petition pursuant to section 203(b)(l)(A) of the 
Act. 
With regard to the petitioner's request for consideration as an outstanding researcher pursuant to 
section 203(b)(l)(B) of the Act, 8 U.S.C. 5 1 153@)(1)(B), 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 U.S. Citizenship and Immigration 
Services (USCIS) requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 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. Chertofl, 
Slip Copy, 2008 WL 2743927 (9th Cir. July 10,2008). 
Furthermore, USCIS is statutorily prohibited fiom 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 
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indirect costs of providing a good, resource, or service.' If the petitioner seeks to classify himself as 
an outstanding researcher pursuant to section 203(b)(l)(B) of the Act, then he must file a separate 
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. 
Even if we were to consider the petitioner's request for a change of classification to an outstanding 
researcher pursuant to section 203(b)(l)(B) of the Act, the petition would be denied because an alien 
cannot self-petition under that classification. USCIS regulations at 8 C.F.R. 8 204.5(i)(l) state "[alny 
United States employer . . . may file an 1-140 visa petition" to classify an alien worker as an outstanding 
professor or researcher. Similar language appears at section 204(a)(l)(F) of the Act. The statute and 
regulations do not indicate that an alien may file an outstanding researcher petition on his or her own 
behalf. Only a United States employer may file a petition seeking to classify an alien as an outstanding 
researcher. As the alien filed the 1-140 petition on his own behalf, it cannot be considered as properly 
filed for classification as an outstanding researcher pursuant to section 203(b)(l)(B) of the Act and 
therefore would be denied under that classification. 
In this matter, the petitioner's appellate submission did not address the petitioner's eligibility pursuant 
to section 203(b)(l)(A) of the Act. With regard to the regulatory requirements at 8 C.F.R. 8 204.5(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 petitioner 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 petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Therefore, the petitioner has not established 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. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be di~missed.~ 
ORDER: The appeal is dismissed. 
1 
 See http://www.whitehouse.p;ov!ombicirculars/aO5aO25.html , accessed on February 4, 2009, copy incorporated into 
the record of proceeding. 
2 
 This decision is without prejudice to a new 1-140 petition properly filed, with the appropriate fee and supporting evidence, 
by a qualifying United States employer.