remanded EB-2 NIW Case: Analytical Chemistry

PUBLIC COPY 
U.Sh Department of Homeland Security 
20 Mass. Ave., N. W.. Km. A3042 
Washington, DC 20529 
FILE: EAC 03 183 52579 Office: VERMONT SERVICE CENTER Date: JUL 0 5 2005 - - - 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. 3 1 I53(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. 
'& Robert P. WiernaQDirector 
Administrative Appeals Office 
EAC 03 183 525 79 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Adtninistrative Appeals Office on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action in accordance with this decision. 
The petition indicated that the petitioner sought classification as an employment-based immigrant under section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(l)(A), as an alien of 
extraordinary ability. The director noted that "some of [the] supporting documentation alludes to a National 
lnterest Waiver (see INA 203(b)(2)[)]," but found the evidence insufficient to establish the petitioner's eligibility 
under section 203(b)(l)(A) of the Act. 
On appeal, counsel claims that the petition was improperly classitied under section 203(b)(I)(A) of the Act "due 
to a clerical errort' by her office that resulted in the wrong box being checked on Part Two of the Form 1-140. 
Counsel further claims that the remainder of the petition "properly reflected that the petition was one under 
5 203(b)(2) for a National lnterest Waiver petition." Several portions of the record indicate that the petitioner 
sought classification under section 203(b)(2) of the Act as an alien seeking an exemption from the job offer 
requirement and thus of a labor certification: page two of the petitioner's Form 1-140 contains a notation that 
"this is a National lnterest Waiver petition," counsel's cover letter accompanying the petition is subtitled "1-140 
National lnterest Waiver Petition for Qing Deng," and many of the supporting documents are relevant to and/or 
explicitly reference the petitioner's request for classification under section 203(b)(2) of the Act. 
However, counsel's cover letter dated June 3, 2003 also makes repeated references to the petition as one filed 
under section 203(b)(l)(A) of the Act. On page one of this letter, counsel states, "The materials enclosed for 
your review are a testament to [the petitioner's] status as an individual of extraordinary ability under section 
203(b)(l)(A)." On page seven of the letter, counsel claims the petitioner "has already demonstrated her 
extraordinary ability in the filed [sic] of analytical chemistry." Given counsel's equivocal references to both 
sections 203(b)(l)(A) and 203(b)(2) of the Act, any confusion regarding the proper classification of the petition 
is due to counsel's own statements and not rigid adherence to the alleged "clerical error" made on Part Two of 
the Form 1-140. 
Nevertheless, we find that the director improperly denied the petition for lack of evidence without first issuing a 
request for evidence (RFE) as required by 8 C.F.R. 3 103.2(b)(8). Because the notation on the second page of 
the Form 1-140 and the supporting documents clearly indicate that the petitioner sought classification under 
section 203(b)(2) of the Act, the director must consider the petition under that classification and any RFE must 
solicit clarification of the petitioner's requested classification. Accordingly, we will remand the petition for 
further action by the director in accordance with this decision. 
ORDER: The decision of the director is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision, which, if adverse to the 
petitioner, is to be certified to the Administrative Appeals Office for review.