dismissed EB-1B Case: Academia

PUBLIC COPY 
DATE: JUN 1 9 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
LS. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusett.<. Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Outstanding Professor or Researcher Pursuant to 
Section 203(b )(I)(B) of the Immigration and Nationality Act, 8 U.s.c. § 1153(b)( 1 )(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related 
to this matter have been returned to the office that originally decided your case. Please be advised that any further 
inquiry that you might have concerning your case must he made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with the 
field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. 
Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any 
motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
emher30, 2010 letter from_ 
the petitioner hired the beneficiary 
as a lecturer in for two years beginning from The central issue in 
this case involves the classification sought. On Part 2 of the Form 1-140, Immigrant Petition for Alien 
Worker, filed on October 18, 2010, former counsel for the petitioner checked box "b," indicating that the 
petitioner seeks to classify the beneficiary pursuant to section 203(b )(1 )(B) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(B), as an outstanding professor or researcher. On April 
20, 2011, the director determined that the petitioner has not established that the beneficiary qualifies for 
classification as an outstanding professor or researcher. 
Upon review, the AAO concludes that the director's decision was proper under the law and regulations. As 
will be discussed in detail, a petitioner may not make material changes to a petition after adjudication in 
order to establish eligibility. In addition, the Act prohibits U.S. Citizenship and Immigration Services 
(USCIS) from providing a petitioner with multiple adjudications for a single petition with a single fee. 
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): 
(B) Outstanding professors and researchers - An alien is described in this subparagraph if -
(i) the alien is recognized internationally as outstanding in a specific academic area, 
(ii) the alien has at least 3 years of experience in teaching or research in the academic 
area, and 
(iii) the alien seeks to enter the United States--
(I) for a tenured position (or tenure-track position) within a university or 
institution of higher education to teach in the academic area, 
(ll) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
(Ill) for a comparable position to conduct research in the area with a department, 
division, or institute of a private employer, if the department, division, or 
institute employs at least 3 persons full-time in research activities and has 
achieved documented accomplishments in an academic field. 
In this case, the petitioner filed the Form 1-140 petition on October 15, 2010. The petitioner checked 
box "b" under Part 2 of the Form 1-140 petition requesting the beneficiary be classified as an outstanding 
professor or researcher. On behalf of the petitioner, the petitioner's former \CU'""""', 
certified through the electronic filing that the Form 1-140 petition under penalty of perjury, certifying 
that "this petition and the evidence submitted with it are all true and correct." The petition was 
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accompanied by a letter from former counsel that repeatedly states that the beneficiary is eligible to be 
classified as an outstanding professor or researcher. Former counsel concluded the letter with the 
statement: "[the petitioner] qualifies [for] more than 2 criteria of the immigrant visa petition under the 
EB-IB category." Former counsel also filed a voluminous amount of documents to support her 
assertion that the petitioner is eligible for the outstanding professor and researcher classification. In 
former counsel categorized the September 30, 2010 letter from the 
as a "Permanent Job offer from to [the 
beneficiary]." 
On December 7, 2010, the director issued a Request for Evidence (RFE), noting that the 
_ letter from does not establish that the beneficiary has been 
offered a tenured position or a position that is on tenure-track, as required under section 
203(b)(1)(B)(iii)(I) of the Act and the regulation at 8 C.F.R. § 204.5(i)(3)(iii). As such, the director 
requested evidence relating to the beneficiary's employment offer, and evidence showing that the 
beneficiary has at least three years of experience in teaching and/or research in the academic field. 
In a letter dated January 6, 2011, former counsel asserted that she had made a mistake on the petition 
and the petitioner had wanted to seek to classify the beneficiary pursuant to section 203(b )(1 )(A) of the 
Act, 8 U.S.C. § 1 . Former counsel also submitted a 
December 27, 2010 letter stating that "[the petition] was 
meant to be filed as EB I A and not EB I 8." 20, 11, the director denied the petition finding 
that the petitioner has not shown that the beneficiary meets the statutory and regulatory requirements for 
classification as an outstanding professor or researcher, pursuant to section 203(b )(1 )(B) of the Act. 
On appeal, counsel requests that the AAO adjudicate the petition pursuant to section 203(b)(I)(A) of the 
Act, under the classification as an alien of extraordinary ability. Counsel asserts that former counsel 
checked the wrong box under Part 2 of the Form J- 140 petition and that it was an "administrative and 
clerical error." 
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 1-140 petition 
was clearly marked under Part 2 as a petition filed for classification as "[a]n outstanding professor or 
researcher." Former counsel certitied and filed the Form 1-140 petition by internet, on behalf of the 
petitioner, under penalty of perjury, attesting that the information on the form was true and correct. As all 
the documents, filed along with the petition, were presented as supporting evidence for a request of 
classification as an outstanding professor or researcher, the director properly adjudicated the petition 
pursuant to section 203(b)(I)(B) of the Act. Accordingly, the petitioner is precluded from requesting a 
change of classification on appeal. 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 /zllmmi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). In addition, the Court of Appeals for the Ninth Circuit has determined that once USCIS 
concludes that an alien is not eligible for the specifically requested classification, the agency is not 
Page 4 
required to consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil 
Quality Stones, Inc., v. ChertoJf, Slip Copy, No. 06-55879, 286 F. A'ppx 963, 965 (9th Cir. July 10, 
2(08). 
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 petition covered the cost of the 
director's adjudication of the 1-140 petition, in this case, for classification as "[a]n outstanding professor 
or researcher." Pursuant to section 286(m) of the Act, 8 U.S.c. § 1356(m), 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. 1 If the petitioner now seeks to classify the beneficiary as "[a]n alien of 
extraordinary ability," pursuant to section 203(b)(I)(A) of the Act, then it must file a separate Form 1-140 
petition requesting the new classification. On appeal, counsel's reliance on ROlldnahal v. Ridge, 310 F. 
Supp. 2d 884 (N.D. Ohio 2003), is misplaced. First, Roudnahal does not deal with a change of 
classification on a Form 1-140 petition. Rather, Roudnahal deals with USCIS's duty to adjudicate Form 
1-485 applications. Second, Roudnahal is a U.S. district court case. Its holding is not binding precedent 
on the AAO. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). In short, 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. 
The regulation at 8 C.F.R. § 103 .2(b )(8)(i) provides in pertinent part: "If the record evidence establishes 
ineligibility, the benefit request will be denied on that basis." Furthermore, the regulation at 8 C.F.R. 
§ 103 .2(b )(8)(ii) provides in pertinent part: "If all required initial evidence is not submitted with the 
benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request 
for lack of initial evidence or for ineligibility .... " 
The director concluded that the petitioner has not submitted the required initial evidence necessary to 
support a petition seeking to classify the beneficiary as an outstanding professor or researcher. 
Specifically, the director found that (1) the petitioner has not submitted sufficient evidence to show that 
it has offered the beneficiary a teaching position that is a tenured or tenure-track position, and (2) the 
petitioner has submitted no evidence in response to the director's RFE that shows the beneficiary has at 
least three years of experience in teaching and/or research in the academic field. Counsel does not 
contest this finding on appeal. The AAO, therefore, considers this issue to be abandoned. Sepulveda v. 
U.S. At! 'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 
1343, 1344 (11 th Cir. 1998); see also Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at * 1, 
*9 (E.D.N.Y. Sept. 30,2011) (plaintitl's claims were abandoned as he failed to raise them on appeal to 
the AAO). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not sustained that burden. 
I See http://www.whitehouse.gov/omb/circulars_a025. 
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Order: The appeal is dismissed.