remanded EB-2 NIW Case: Religious Administration

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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PUBLIC COPY 
Office: CALIFORNIA SERVICE CENTER 
 Date: AUG 0 1 2008 
WAC 04 205 51063 
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. § 1 153(b)(2) 
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. 
A' Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. 
The Administrative Appeals Office (AAO) rejected an earlier appeal that had been submitted by a party not 
entitled to file an appeal. The director reissued the decision, and the petitioner has filed an appeal. The decision 
of the director will be withdrawn and the petition will be remanded for further action and consideration. 
The petitioner is a church expansion and community involvement officer for the Church of Scientology 
International (CSI). On the Form 1-140 petition, the petitioner indicated that she seeks classification pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 153(b)(l)(A), as an alien of 
extraordinary ability. Materials submitted with the petition, however, indicate that the petitioner seeks 
classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
3 1153(b)(2), as an alien of exceptional ability who seeks an exemption from the requirement of a job offer, and 
thus of a labor certification, in the national interest of the United States. 
The director found that the beneficiary does not qualify for classification as an alien of extraordinary ability. 
We note that, on appeal, the petitioner requests that the adjudication of her appeal be held in abeyance 
pending her receipt of a copy of the record of proceeding under the Freedom of Information Act, in order "to 
determine if there is anything that the government has added to the record [ofl proceedings which is 
extraneous or should not be there." The processing of a request for a copy of the record, in order to determine 
whather the government has added unidentified documents to the record, is not good cause for an extension 
under 8 C.F.R. Ej 103.3(a)(2)(vii). Therefore, this request is denied. 
Some documents in the record indicated that the CSI was the petitioner (although no church official had signed 
the Form 1-140 petition). As a result, the director had mailed the request for evidence and the subsequent denial 
notice to the CSI rather than to the alien beneficiary (who signed the petition form and, therefore, is the de facto 
petitioner). 
In its previous order in this proceeding, the AAO rejected the appeal filed by the CSI, pursuant to 8 C.F.R. 
Ej 103.3(a)(2)(v). The AAO, in its rejection notice, observed "the director has not properly served the 
petitioner with notice of the decision (or the prior request for evidence)." The AAO also stated: "Unless and 
until the affected party properly submits a timely appeal, we shall not discuss the merits of the director's 
decision or the rebuttal arguments offered by the Church of Scientology International." 
Although the AAO observed that the director had never served the petitioner with a request for evidence 
(WE), there is no indication that the director reissued this notice. 
On March 7, 2006, the director reissued the denial notice. The substance of the notice is identical to that of 
the director's previous decision of May 13, 2005. In both of those decisions, the director denied the petition 
based on the petitioner's failure to establish extraordinary ability pursuant to regulations at 8 C.F.R. 
3 204.5(h). 
Throughout the proceeding, the director has treated the matter as a petition for an alien of extraordinary 
ability under section 203(b)(l)(A) of the Act, apparently because the petitioner checked the corresponding 
box on the Form 1-140. The materials submitted with that form, however, consistently refer to the lesser 
classification of alien of exceptional ability under section 203(b)(2) of the Act. If the petitioner had intended 
to seek the latter classification, and simply checked the wrong box on the petition form, then the director 
adjudicated the petition under the wrong classification, and the director must adjudicate the petition under 
exceptional abilityfnational interest waiver criteria (including, if necessary, the issuance of an RFE relating to 
those standards). 
We note, nevertheless, that the petitioner, on appeal, does not argue that the director adjudicated the petition 
under the wrong immigrant classification. The director must therefore ascertain, clearly and unambiguously, 
which classification the petitioner seeks: alien of exceptional ability or alien of extraordinary ability. The two 
classifications are entirely separate with different standards of eligibility. 
If the director determines that the petitioner seeks classification as an alien of exceptional ability, with a 
national interest waiver, then the director must issue a new decision addressing the relevant criteria. If, on the 
other hand, the petitioner opts for consideration as an alien of extraordinary ability, the director must issue an 
RFE to the petitioner, which so far has not been done. 
Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted 
and should allow the petitioner to submit additional evidence in support of its position within a reasonable period 
of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for Mer action 
in accordance with the foregoing and entry of a new decision which, regardless of the outcome, 
is to be certified to the Administrative Appeals Office for review.