dismissed EB-1A Case: Sushi Chef

idmtitying da~ deleted to 
prevent clearly unwamned 
invasion of pssond plivac' 
pmLIC coPv 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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: 
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. $ 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). 
mrdL 
/ John F. Grissom 
k-' Acting Chief, Administrative Appeals Office 
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 restaurant. It seeks to employ the beneficiary permanently in the United States as a 
sushi chef. The central issue in this proceeding involves the classification sought. On Part 2 of the 
Form 1-140, Immigrant Petition for Alien Worker, 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: 
(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. tj 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; 
(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 was filed concurrently with the beneficiary's Form 1-485, Application to Register 
Permanent Residence or Adjust Status, on June 18, 2007. As previously indicated, 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 certified ETA Form 9809, Application for Permanent 
Employment Certification, the petitioner's U.S. Lncome Tax Returns for 2004 through 2006, a 
November 10, 2000 employment reference letter for the beneficiary from the General Manager of 
fi and the beneficiary's Form W-2 Wage and Tax Statements for 2004 
through 2006. The petitioner also submitted a June 11, 2007 letter from counsel listing the 
documentation submitted, but his letter did not specify the classification sought. 
On April 10,2008, 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 
Page 4 
extraordinary ability. The director's decision also stated: "Even if this petition was filed to classify the 
beneficiary as a skilled worker, that is, as an immigrant under section 203(b)(3)(A) of the Immigration 
and Nationality Act, as amended, the record does not show sufficient evidence of the beneficiary's 
eligibility." Specifically, the director found that the petitioner had not established "the beneficiary has 
the twenty four (24) months of training and (24) months of experience required by this labor 
certification." 
On appeal, the petitioner submits a May 7, 2008 letter from counsel listing the documents 
accompanying the appeal, but his letter again fails to specify the classification sought. The 
petitioner's appellate submission includes a copy of the Form 1-140 petition indicating that the 
petition was filed for "[aln alien of extraordinary ability." The petitioner also submits an affidavit 
executed by the beneficiary attesting to his work experience, an unsigned April 26, 2008 
employment verification letter from the president of a May 7, 2008 letter from the 
petitioner discussing the beneficiary's work experience, the beneficiary's income tax returns for 
2000, 2001,2003 and 2004, and another copy of ETA Form 9809. None of this evidence satisfies 
any of the extraordinary ability regulatory criteria set forth at 8 C.F.R. tj 204.5(h)(3). 
The Form 1-140 petition initially filed with the service center and the copy of petition submitted on 
appeal are both clearly marked under Part 2 as requesting 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 
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 any 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 U.S. Citizenship and Immigration 
Services (USCIS) requirements. See Matter of liummi, 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. 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. tj 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 
Page 5 
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 
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. 
Finally, the concurrent filing of the Form 1-140 and the Form 1-485 raises an additional issue 
regarding a request for a change of classification to skilled worker pursuant to section 203(b)(3) of 
the Act, and further supports a conclusion that the petitioner sought to classify the beneficiary under 
section 203(b)(l)(A) of the Act. The AAO notes that by checking box "a" under Part 2 of the Form I- 
140 for extraordinary ability classification it conveniently allowed the alien to concurrently file for 
adjustment of status and gave him the opportunity for work authorization when he would have been 
otherwise barred under third preference employment-based classification pursuant to section 203(b)(3) 
of the Act. 
The regulation at 8 C.F.R. tj 245.1(g)(l) states, in pertinent part: "An alien is ineligible for the 
benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at 
the time the application is filed." 
The regulation at 8 C.F.R. tj 245.2(a)(2) states, in pertinent part: 
Proper filing of application -- 
(i) Under section 245. (A) An immigrant visa must be immediately available in order 
for an alien to properly file an adjustment application under section 245 of the Act 
See 5 245.1(g)(l) to determine whether an immigrant visa is immediately available. 
(B) If, at the time of filing, approval of a visa petition filed for classification under 
section 201(b)(2)(A)(i), section 203(a) or section 203(b)(l), (2) or (3) of the Act 
would make a visa immediately available to the alien beneficiary, the alien 
beneficiary's adjustment application will be considered properly filed whether 
submitted concurrently with or subsequent to the visa petition, provided that it meets 
the filing requirements contained in parts 103 and 245. For any other classification, 
the alien beneficiary may file the adjustment application only after the Service has 
approved the visa petition. 
(C) A visa petition and an adjustment application are concurrently filed only if: 
(1) The visa petitioner and adjustment applicant each file their respective form at 
the same time, bundled together within a single mailer or delivery packet, with the 
proper filing fees on the same day and at the same Service office . . . . 
---- 
I 
 See http:llwww.whitehouse.gov/omb/circulars/aO25/aO25.h~1. 
Page 6 
The above regulations require that an immigrant visa be immediately available for concurrent filings 
of Form 1-140s and Form 1-485s submitted for those seeking classification pursuant to section 
203(b)(l), (2) or (3) of the Act. The Form 1-140 petition was filed concurrently with the 
beneficiary's Form 1-485 on June 18, 2007. The beneficiary checked box "a7' under Part 2 of the 
Form 1-485 application to indicate that he was filing the petition on the basis of "an immediately 
available immigrant visa number." However, at that time, no immigrant visas were immediately 
available for third-preference skilled workers with priority dates after June 1, 2005.~ Therefore, 
based on a priority date of February 20, 2007, the petitioner and the beneficiary were ineligible to 
concurrently file the Form 1-485 application for adjustment with the Form 1-140 petition. If the 
Form 1-140 and Form 1-485 are filed together with separate fees (as in the present case) and there is 
no visa currently available, the Form 1-140 and fee shall be accepted, but all relating Form 1-485s 
and ancillary applications shall be reje~ted.~ Thus, if the petitioner had initially checked box "em for 
classification as a skilled worker, the beneficiary's Fonn 1-485 would have been rejected by the 
service center. However, as counsel for the petitioner checked box "a" for classification as an alien 
of extraordinary ability, the service center accepted the beneficiary's 1-485 on June 18,2007 because 
at that time immigrant visas for section 203(b)(l)(A) of the Act were current for all co~ntries.~ 
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. 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. 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 regulatory criteria at 8 C.F.R. 
 204.5(h)(3). The conclusion we reach by considering the 
evidence to meet each criterion separately is consistent with a review of the evidence in the 
aggregate. Even in the aggregate, the evidence does not distinguish the beneficiary as one of the 
small percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). 
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. 
2 
 See h~:lltravel.state.nov/visa/fivi/bulletiuletin 3236.html. 
 The priority date is the date that the employment 
certification was filed with the U.S. Department of Labor. The priority date for the 1-140 petition in this case is February 
20, 2007. 
3 
 See Interoffice Memorandum from William Yates, Associate Director of Operations, Regression of E31 and E32 Visa 
Numbers for Applicants from Mainland China and Rescission of March 31, 2004 Policy Memo re: Concurrent 
ArIjudication of Concurrently Filed Form 1-140s and Form 1-485s (December 29, 2004). With regard to remittance of a 
single check for multiple filings, if the alien's priority date is not current at the time of those filings, then all filings shall 
be rejected. 
4 
 See h~://travel.state.~ov/~~isa/f~~i/bulleiulletin 3236.html. 
Page 7 
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.