dismissed EB-1B Case: Biomedical Research

PUBLIC COPY 
U.S. Department of Elomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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 1153(b)(l)(B) 
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. 
obert P. ~iemann,-chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
According to Part 5 of the petition, the petitioner is a "U.S. Government Biomedical Research" entity. 
Under gross annual income and net annual income, the petitioner indicated "U.S. Government 
Agency." The petitioner 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. 5 1153(b)(l)(B). The 
petitioner seeks to employ the beneficiary in the United States as a staff scientist. The director 
determined that the petitioner is not an eligible petitioner for the classification sought. 
On appeal, the Director of the petitioner's Division of International Service, 
 asserts 
that the petitioner is both an institution of higher learning and a private employer and, thus, an eligible 
petitioner. For the reasons discussed below, we concur with the director that the petitioner, as a 
government entity, is not eligible to petition for an alien worker under the classification sought. 
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, 
(II) 
for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(III) 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. 
(Emphasis added.) 
The regulation at 8 C.F.R. tj 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
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. 
(Emphasis added.) 
As the petitioner is a government agency, the director determined that it was statutoril ineligible to 
file the instant petition and denied the petition accordingly. On appeal, dotes that the 
do not define either the phrase "institution of higher learning" or "private employer." 
asserts that the petitioner, while not a degree-granting institution, is an institution of 
higher learning because it has "a tenure and tenure-track system similar to that of U.S. universities" 
and provides mentoring to postdoctoral trainees, medical residents and fellows. 
 The petitioner 
submits an e-mail message from 
 Assistant Director of the petitioner's office of 
Intramural Research, 
 programs and copies of regulations and 
proposed rules. 
the regulation at 8 C.F.R. tj 204.5(i)(l) provides that "[alny United States 
seeking to classify an alien as an outstanding professor or researcher 
pursuant to section 203(b)(l)(B) of the Act. The statute, however, requires that the alien be seeking 
to work for an institution of higher education or a private employer. The regulation requires a job 
offer1 from an institution of higher learning or a private employer. In the legislative history, 
1 
 Black's Law Dictionary 11 11 (7" ed. 1999) defines "offer" as "the act or an instance of presenting 
something for acceptance" or "a display of willingness to enter into a contract on specified terms, made in a 
Page 4 
Congress stated that an "invitation for employment by a university or private employer must 
accompany a petition for admission." Family Unity And Employment Opportunity Immigration Act 
Of 1990 House Report, H.R. Rep. No. 101-723, 59-60 (September 19, 1990). Thus, it is clear that the 
petition must be filed by an institution of higher education or a private employer. 
It is rudimentary that interpretation of the statutory language begins with the terms of the statute 
itself, and if those terms, on their face, constitute a plain expression of congressional intent, they 
must be given effect. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 
837, 842-43 (1994). Where Congress's intent is not plainly expressed, we then need to determine a 
reasonable interpretation of the language and fill any gap left, either implicitly or explicitly, by 
Congress. Id. at 843-44. The rules of statutory construction dictate that we take into account the 
design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 28 1,291 (1988). Moreover, 
the paramount index of congressional intent is the plain meaning of the words used in the statute 
taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 43 1 (1987). The legislative purpose is 
presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 
183, 189 (1 984). 
While section 203(b)(l)(B) of the Act may not define "institution of higher education," Congress has 
defined this phrase in its laws pertaining to education. Specifically, 20 U.S.C. 9 1001(a) defines 
"Institution of higher education," in pertinent part, as follows: 
[A]n educational institution in any State that-- 
(1) admits as regular students only persons having a certificate of graduation 
from a school providing secondary education, or the recognized equivalent of 
such a certificate; 
(2) is legally authorized within such State to provide a program of education 
beyond secondary education; 
way that would lead a reasonable person to understand that an acceptance, having been sought, will result in 
a binding contract." Black's Law Dictionary does not define "offeror" or "offeree." The online law dictionary 
by American Lawyer Media (ALM), available at www.law.com, defines offer as "a specific proposal to enter 
into an agreement with another. An offer is essential to the formation of an enforceable contract. An offer 
and acceptance of the offer creates the contract." Significantly, the same dictionary defines offeree as "a 
person or entity to whom an offer to enter into a contract is made by another (the offeror)," and offeror as "a 
person or entity who makes a specific proposal to another (the offeree) to enter into a contract." (Emphasis 
added.) Thus, a letter addressed to Citizenship and Immigration Services (CIS) afimzing the beneficiary's 
employment, is not a job offer withn the ordinary meaning of that phrase. 
(3) provides an educational program for which the institution awards a 
bachelor's degree or provides not less than a 2-year program that is acceptable 
for full credit toward such a degree; 
(4) is a public or other nonprofit institution; and 
(5) is accredited by a nationally recognized accrediting agency or association, 
or if not so accredited, is an institution that has been granted preaccreditation 
status by such an agency or association that has been recognized by the 
Secretary for the granting of preaccreditation status, and the Secretary has 
determined that there is satisfactory assurance that the institution will meet the 
accreditation standards of such an agency or association within a reasonable 
time. 
Subparagraph (b) provides that the following entities are also included: 
(1) any school that provides not less than a 1-year program of training to prepare 
students for gainful employment in a recognized occupation and that meets the 
provision of paragraphs (I), (2), (4), and (5) of subsection (a) of this section; and 
(2) a public or nonprofit private educational institution in any State that, in lieu of the 
requirement in subsection (a)(l) of this section, admits as regular students persons 
who are beyond the age of compulsory school attendance in the State in which the 
institution is located. 
This definition provides a reasonable basis for us to interpret congressional intent in using the phrase 
"institution of higher education" in section 203(b)(l)(B) of the Act. None of the materials submitted 
establish that the petitioner is an education institution that admits students and provides education 
that can be credited towards a baccalaureate degree or that it is a "school" that provides training to 
"students." Paid postdoctoral associates, residents and fellows are employees who have obtained 
their degrees, not "students." The record also does not show that the petitioner is legally authorized 
by the State of Maryland to provide a post-secondary educational program. Further, the record lacks 
evidence that the petitioner is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been granted preaccreditation status by 
such an agency or association that has been recognized by the Secretary of Education for the granting 
of preaccreditation status. Finally, we are not persuaded that a tenure-based employment system 
renders an employer that does not otherwise meet the above definition of an institution of higher 
education. Our interpretation that the phrase "institution of higher education" contemplates an 
accredited or preaccredited institution that admits students is consistent with the legislative history of 
section 203(b)(l)(B) of the Act which provides: "An invitation for employment by a university or 
rage b 
private employer must accompany a petition for admission." H.R. Rep. No. 101-723 at 60. The 
petitioner has not established that it is an institution of higher education. 
Next, we examine whether the petitioner, a government agency, might be a "private employer." We 
must presume that the use of the word "private" in the statute is not superfluous and, thus, that it has 
some meaning. See Walters v. Metro. Educ. Enters., 5 19 U.S. 202, 209 (1 997); Bailey v. U.S., 5 16 
U.S. 137, 145 (1 995). Black's Law Dictionary 12 13 (7th ed. 1999) defines "private" as "[rlelating or 
belonging to an individual, as opposed to the public or the government." (Emphasis added.) The 
petitioner is a government agency and, thus, cannot be considered a "private employer." This 
interpretation does not preclude government agencies from filing petitions in behalf of researchers in 
other classifications. 
On appeal, 
 references the commentary to a proposed rule. Specifically, Employment-Based 
Immigrants, 60 Fed. Reg. 29771, 29775 (June 6, 1995) states that government agencies "should" be 
able to file petitions under this classification and proposes to "amend the regulation to include 
government agencies on the list of United States employers." (Emphasis added.) The fact that it was 
deemed necessary to propose an amendment to the regulation to allow state, local, or Federal 
govemment agencies to petition under this classification reinforces the position that the current 
regulation does not do so. The proposed version of 8 C.F.R. 5 204.5(i)(3)(iii)(C) would allow for a job 
offer from "a private employer or a state, local or Federal Government agency." (Emphasis added.) 
The use of the disjunctive "or" as opposed to a word such as "including" reveals that legacy 
Immigration and Naturalization Service (INS), now Citizenship and Immigration Services (CIS), did 
not believe that the phrase "private employer" includes government agencies. We reiterate that this 
proposed amendment to add government agencies to the list of eligible employers was not implemented 
as a final rule. Accordingly, the petitioning entity is not an eligible petitioner in accordance with 
8 C.F.R. 5 204.5(i)(3)(iii). 
Finally, 
 asserts that other Service Centers have approved petitions in this classification filed 
by the petitioner. 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 (Commr. 1988). It would be 
absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 
(1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a Service Center Director had approved other petitions 
in this classification filed by the petitioner, the AAO would not be bound to follow the contradictory 
decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 at *3 (E.D. 
La.), aff'd, 248 F.3d 1 139 (5th Cir. 2001), cert. denied, 534 U.S. 8 19 (2001). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. 
 The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.