dismissed EB-1B Case: Biological Chemistry

U.S. Department of Homeland Security 
20 Mass Ave . N W , Rm A3042 
Wash~ngton. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: LTN 03 268 50 129 Office: NEBRASKA SERVICE CENTER Date: A(.!; , ii,i,; 
IN RE: 
PETITION: Immigrant Petition for Alien, Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. 5 11 53(b)(l)(:B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been retimed to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebrask.a Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a university. It seeks to classify the beneficiary as an outstanding researcher pursuant to 
section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(B). The petitioner 
seeks to employ the beneficiary permanently in the United States as a senior research associate. The director 
determined that the petitioner had not established that it had offered the beneficiary a permanent job as defined 
in the pertinent regulations. 
On appeal, counsel asserts that the director's decision is inconsistent with previous decisions. We note that we 
adjudicate petitions on a case-by-case basis. The AAO is not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). In 
addition, counsel's appellate brief adds to the inconsistencies that were already apparent in the record of 
proceedings. 
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, 
(11) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
(111) 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. 
The regulation at 8 C.F.R. 5 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
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An offer of employment from a prospective United States employer. A labor certification is not 
required for this classification. The offer of employment shall be in the form of a letter from: 
(A) A United States university or institution of higher learning offering the alien a 
tenured or tenure-track teaching position in the alien's academic field; 
(B) A United States university or institution of higher learning offering the alien a 
permanent research position in the alien's academic field; or 
(C) A department, division, or institute of a private employer offering the alien a 
permanent research position in the alien's academic field. The department, division, or 
institute must demonstrate that it employs at least three persons full-time in research 
positions, and that it has achieved documented accomplishments in an academic field. 
The regulation at 8 C.F.R. § 204.5(i)(2), provides, in pertinent part: 
Permanent, in reference to a research position, means either tenured, tenure track, or for a tenn 
of indefinite or unlimited duration, and in which the employee will ordinarily have a.n 
expectation of continued employment unless there is good cause for termination. 
On Part 6 of the petition, the petitioner was a permanent position. The 
petitioner submitted a June 19,2003 letter fro rofessor at the petitioning institution, 
to Citizenship and Immigration asserts that the beneficiary "has been 
employed as a Senior Research Associate Scientist since January 2003. We continue to make an offer of full- - - 
time employment to [the beneficiary] to serve as a Senior Research Associate Scientist." On October 1, 2004, 
the director requested "the actual offer of employment made by [the petitioner] to [the beneficiary]." 
The petitioner's response does not include the original offer of employment from the petitioner to the 
beneficiary. Rather, the petitioner submitted the beneficiary's August 5, 2003 notification of a change in the 
terms and conditions of his appointment. The notification does not include an appointment ending date, 
although a space for such a date is on the form. The petitioner also submitted letters from a human resources 
administrative assistant with the petitioner's Department of Biological Chemistry and a payroll supervisor 
affirming that the beneficiary "is" a permanent employee. While favorable on their face, these documents are 
inconsistent with the other letter submitted in response to the request for additional evidence and ~oun~sel's own 
assertions on appeal. 
The petitioner also submitted a new letter fro-ated October 1 1, 2004. This letter, jointly signed 
by the beneficiary, is once again addressed to CIS and purports to clarify the June 19, 2003 letter. The letter 
affirms that the petitioner and the beneficiary "agree that the position i; for a term of indefinite or unlimited 
duration and that [the beneficiary] ordinarily has an expectation of continued employment." The letter reiterates 
that the job has "no specific ending date and will continue to be open for the indefinite future." The letter then 
cites a provision from the "Faculty/Staff Handbook" regarding termination for cause. The letter concludes, 
however, with the following statement: "As a 12-month appointee, [the beneficiary] will accrue vacatron." In a 
second lette attests to his own authority to hire the beneficiary. 
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On appeal, counsel's assertions raise even more concerns and contradictions. Specifically, in atidition to 
asserting that the regulations do not require an offer addressed to the beneficiary, counsel states: 
[The director] continually contends that the petitioner has failed to produce what [the director] 
requested, namely a copy of the actual offer of employment made to the beneficiary. 
Employment-based immigrant petitions are by definition based on prospective positions, since 
the alien is unable to lawfully accept permanent employment in the U.S. until he or she is a 
permanent resident. An actual letter of employment issued-for the alien's current (temporary) 
employment is not relevant to the petition. What is relevant is that the alien has been offered a 
permanent research position in his field as evidence in a letter from the petitioner. The June 19 
letter meets these regulatory criteria. 
Counsel further asserts that the 12-month appointment is not disqualifying because it represents a typical 
university structure whereby universities "make appointments and issue wage increases on a yearly basis." 
Counsel's implication that it would require a change in appointment policy to hire the petitioner beyond a 12- 
month appointment conflicts with counsel's other assertion, quoted above, that the petitioner has made the 
beneficiary an offer of employment more permanent than the current 12-month appointment counsel 
characterizes as "temporary." 
The fact that the beneficiary is currently employed in a term position is not in and of itself disquali@ing.' A 
beneficiary need not already be working in a permanent capacity; the petitioner could submit a conditional job 
offer for a permanent job contingent on the beneficiary's adjustment to lawful permanent resident status. We 
emphasize that the record does not contain such an offer. First, we concur with the director that the ordinary 
meaning of an "offer" requires that it be made to the offeree, not a third party. Regulatory language requiring 
that the offer be made "to the beneficiary" would simply be redundant. Thus, a letter addressed to CIS is not a 
job offer. Of more concern, the June 19, 2003 letter specifically states that the job offered is the same position 
and title as the job currently held by the beneficiary, a senior research associate scientist, a position that Dr. 
ubsequently characterizes as a 12-month appointment and counsel concedes is temporary. The 
pet~tioner has not demonstrated that the position of senior research associate scientist can include both term 
appointments and indefinite employment. It remains that the petitioner has not demonstrated that absent an 
act by the petitioner, such as a letter of termination or non-reappointment, a senior associate research scientist 
would continue in that position past 12 months. 
Ultimately, either the beneficiarv's current iob is permanent. as claimed bv some of the letters discussed 
above, or it is temporary, as implied b and conceded by counsel. If the current job is 
permanent and the job on which the job offer letter is relevant. If the current 
job is temporary, a job offer letter preceding the date of filing2-for a-permanent, and thus different, position is 
required. 
Finally, it is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
I 
While a nonimmigrant's authorization to work is temporary, counsel provides no legal authority for the 
implication that a nonimmigrant cannot accept a job that does not specify a termination date. 
'See 8 C.F.R. 3 103.2(b)(12); Matter ofKatigbuk; 14 I&N Dec. 45,49 (Comm. 1971). 
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582, 591-92 (BIA 1988). The petitioner has not resolved the inconsistencies regarding the terrns of the 
beneficiary's current job and whether the job offered is merely a reappointment to the same job. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.