dismissed EB-1A Case: Unknown

U.S. Department of Holneland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. citizenship 
del-nifving data deleted to 
 and Immigration 
' ,S-@s 'A - A 
*A) *. r;a t r da I-:;:: 1x7 llwarranted Services 
.:"7r2S'-'". ' ' ; *.yonal privacy 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER 
 Date:NOV 0 9 2009 
LIN 07 197 50829 
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. 8 103.5 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. 3 103.5(a)(l)(i). 
5""'" "1'" 
1' ' erry Rhew 
-1-v chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifl for classification as an alien of extraordinary ability. The director also noted that even ifthe 
petition had been filed pursuant to the lesser skilled worker classification pursuant to 8 C.F.R. 
5 203(b)(3)(A)(i), the record still lacked letters documenting the beneficiary's experience. The director, 
however, did not perform a full adjudication under that section of law. For example, the director did 
not address whether the beneficiary's personal tax documentation back through 2004 could establish 
the petitioner's ability to pay the proffered wage as of the priority date in 2001. 8 C.F.R. 5 204.5(g)(2). 
On appeal, the petitioner asserts that the beneficiary qualifies as a skilled worker pursuant to section 
203(b)(3)(A)(i) of the Act. The petitioner does not address any of the director's concerns regarding the 
beneficiary's ineligibility pursuant to section 203(b)(l)(A), the classification originally sought. 
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. 
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. 60897,60898-9 (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 have risen to the very top of the field of 
endeavor. 8 C.F.R. 8 204.5(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). 
The Form 1-140, Immigrant Petition for Alien Worker, was filed on November 29, 2007. 
 The 
petitioner checked box "a" under Part 2 of the Form 1-140 petition requesting to classify the beneficiary 
as an alien of extraordinary ability. The petitioner also signed the Form I- 140 under penalty of perjury, 
certifying that "this petition and the evidence submitted with it are all true and correct." 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. 5 204.5(h)(3). 
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. As discussed, the Form I- 
140 petition was clearly marked under Part 2 as a petition filed for classification as "[aln alien of 
extraordinary ability." As the petition was unaccompanied by instructions from the petitioner 
specifying otherwise, the director properly adjudicated the petition pursuant to section 203(b)(l)(A) 
of the Act. 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. 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 (Cornm'r. 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. Chertox 286 Fed. Appx. 963 
(9th Cir. July 10,2008). 
Moreover, 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 under section 203(b)(l)(A) of the Act. 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.' Thus, a full 
adjudication by the director under both sections 203(b)(l)(A) and 203(b)(3)(A)(i) of the Act would 
have been in error. 
If the petitioner now seeks classification of the beneficiary as a skilled worker pursuant to section 
203(b)(3)(A)(i) of the Act, then the petitioner must file a separate Form 1-140 petition, with the 
accompanying fee, requesting the new classification. 
' See htt~://www.wl~itehouse.lzov/omb/circulars/aO25/aO25html (accessed November 5, 2009 and 
incorporated into the record of proceeding. 
As stated in 8 C.F.R. fj 103.3(a)(l)(v), an appeal shall be summarily dismissed if the party concerned 
fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 
The petitioner here has not specifically addressed the reasons stated for denial, the beneficiary's 
ineligibility as an alien of extraordinary ability pursuant to section 203(b)(l)(A), and has not provided 
any additional evidence relating to that classification. The petitioner has not even expressed 
disagreement with the director's decision as it relates to that classification. The appeal must therefore 
be summarily dismissed. 
ORDER: The appeal is dismissed.