dismissed EB-2 Case: Unknown

(b)(6)
DATE: AUG 0 1 2013 
INRE: Petitioner: 
Beneficiary : 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor 
establish agency policy through non-precedent decisions. If you believe the AAO incorrectly 
applied current law or policy to your case or if you seek to present new facts for consideration, you 
may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a 
Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please 
review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information 
on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion 
directly with the AAO. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis~gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is the beneficiary. The 
beneficiary seeks classification as an advanced degree 
professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2).1 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's February 20, 2013 denial, the single issue in this case is whether or not 
the petitioner has established that he is a U.S. employer, and the job offer is supported by a 
Department of Labor (DOL) approved ETA From 9089, Application for Alien Employment 
Certification pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 
u.s.c. § 1153(b)(2). 
Here, the Form I-140 was filed on September 4, 2012. On Part 2.d. of the Form I-140, the 
beneficiary indicated that he was filing the petition for a member of the profession holding an 
advanced degree or an alien of exceptional ability (Who is not seeking a National Interest Waiver). 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.2 On appeal, the beneficiary states that he made a typographical 
error on Form I-140 and that he intended to check Part 2.a. indicating that he was self-petitioning for 
himself as an alien of extraordinary ability. 
Further, the record indicates that the petitioner attempted to clarify before the director that he 
intended to be considered an alien of extraordinary ability on the Form I-140. This is evidenced in a 
written response to the director on November 20, 2012. However, the record contains no initial 
evidence establishing his extraordinary abilities. Nor did he supply evidence that he submitted 
supporting evidence to the director. Although he claims to have submitted evidence; however, the 
record does not contain any evidence of his extraordinary or exceptional ability or that any initial 
evidence to illustrate these qualities was received by the director. 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees, whose services are sought by an employer in the United States. 
2 The submission of additional evidence on appeal is allowed by the instructions to the Form I-
290B, which are incorporated into the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant 
case provides no reason to preclude consideration of any of the documents newly submitted on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The director declined to reclassify the petition, as the beneficiary did not submit any evidence in 
support of a classification as an alien of extraordinary ability. The AAO affirms the decision of the 
director denying the beneficiary's request to reclassify the petition to one for an alien of 
extraordinary ability under Section 2.a. of the Form 1-140, under the Act, 8 U.S.C. § 1153 (b)(1)(A). 
The record is devoid of any evidence that the beneficiary meets any of the requirements at 8 C.P.R. § 
204.5 (h)(3)(i-x). 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The evidence submitted does not establish that the petition is supported by an approved Form ETA 
9089, or that the beneficiary possesses an advanced degree or exceptional ability, or that a bona fide 
job opportunity exists. 
Further, every petition filed to classify an alien beneficiary as an employment-based immigrant 
under section 203(b )(2) of the Act must be accompanied by an individual labor certification issued 
by DOL. See 8 C.P.R. § 204.5(1)(3)(i). Without an appropriate certification from DOL, the AAO is 
without statutory authority to approve a petitioner's employment-based third preference immigrant 
petition. 
Moreover, the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered." The regulation at 8 C.P.R. 
§ 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an alien must meet in 
order to qualify as an alien of exceptional ability in the sciences, the arts, or business: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability 
(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
Where the petitioner fails to submit the requisite evidence, the proper conclusion is that the 
petitioner failed to satisfy the regulatory requirement of three types of evidence. See Kazarian v. 
USCIS, 596 F.3d 1115, 1122 (9th Ck March 4, 2010). 
Further, the petition was electronically filed on April 1, 2013, the regulation at 8 C.P.R. 
§ 103.2(a)(l) provides that the instructions for filing applications and petitions are "incorporated into 
the particular section of the regulations in this chapter requiring .its submission." The instructions for 
electronic filing a Form I-140 and the general electronic filing instructions regarding the submission 
of supporting documentation are available at www.uscis.gov. The instructions for electronic filing 
provide that if the petitioner does not submit the required initial evidence in the requisite time 
period/ the petitioner "will not establish a basis for eligibility and we may deny your petition or 
application." The petitioner did not submit the required initial evidence within seven business days4 
from the date of electronic filing. Thus, the petitioner did not establish a basis for eligibility and the 
director did not err in denying the petition. If all required initial evidence is not submitted with the 
application or petition, or does not demonstrate eligibility, USCIS, in its discretion, may deny the 
petition. 8 C.P.R.§ 103.2(b)(8)(ii)(rule effective for all petitions filed on or after June 18, 2007). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 Seven business days. 
4 The supporting documentation was not submitted.