dismissed EB-1B Case: Biophysics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of permud privacy 
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. 9 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
rNSTRUCTIONS: 
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. 
2- Robert P. Wiemann, Chief 
f Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
,dismissed. 
The petitioner is an institute of higher learning. 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. 
1 153)(1)(B). According to the petition, the petitioner seeks to employ the beneficiary in the United 
States as a research associate. The director determined that the petitioner had not established that it had 
offered the beneficiary a permanent job as of the date of filing. 
On appeal, the petitioner submits new letters attesting to the petitioner's intent to continue employing 
the beneficiary. For the reasons discussed below, we find that the record lacks a job offer predating the 
filing of the petition on September 29,2005. 
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. 
Page 3 
The regulation at 8 C.F.R. 5 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An offer of employment fiom 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 fiom: 
(A) A United States university or institution of higher learning offeving 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.) Black's Law Dictionary 1 1 1 1 (7th ed. 1 999) 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 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.) 
In light of the above, we concur with the director that the ordinary meaning of an "offer'' requires that it 
be made to the offeree, not a third party. As such, regulatory language requiring that the offer be made 
"to the beneficiary" would simply be redundant. Thus, a letter addressed to Citizenship and 
Immigration Services (CIS) afirming the beneficiary's employment is not a job offer within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 5 204.5(i)(2), provides, in pertinent part: 
Permanent, in reference to a research position, means either tenured, tenure track, or for 
a term of indefinite or unlimited duration, and in which the employee will ordinarily 
have an expectation of continued employment unless there is good cause for 
termination. 
On Part 6 of the petition, the petitioner indicated that the proposed employment was a permanent 
r dated September 27, 2005, addressed to "Whom It Ma 
a professor at the petitioning institution. d 
confirms the beneficiary's employment as a research associate and explains that the position is 
"ongoing indefinitely." This document does not constitute a job offer fiom the petitioner to the 
beneficiary. On June 14, 2006, the director requested evidence that the petitioner had extended a 
permanent job offa to the beneficiary. 
In response, the petitioner submitted a letter dated November 1,2005 from 
 addressed to 
the beneficiary renewing his position as a research associate from November 
3 1, 2008. The letter advises that the position is not contingent on funding fiom a single source and 
states: 
This reappointment will be for three years. It is my intention that you will be promoted 
to a higher track at the end of ths period, but such action will of course be based on 
satisfactory performance and availability of funding. 
The director concluded that the petitioner had not offered the beneficiaw a permanent position. On 
appeal, the petitioner submitted a joint letter from and mice-chair 
of the Department of Biophysics at the petitioning institution. The letter explains that the petitioner 
restricts research associates to a three year appointment, 
 be promoted to either a 
Research Investigator or Research Assistant Professor. 
 reiterates his "long-term 
commitment to employing" the beneficiary. The offer letter issued to 
the beneficiary that predates the filing of the petition on September 29,2005. 
The petitioner has not submitted the primary required initial evidence, the original job offer predating 
the filing date of the petition. Confirmations after the fact are not evidence of eligibility as of the date 
of filing. See generally 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. 
Comrnr. 197 1). The petitioner has not complied with the regulation at 8 C.F.R. 5 103.2(b)(2) regarding 
the submission of secondary evidence. Specifically, the petitioner has not demonstrated that the original 
job offer does not exist or is unavailable. While we do not question the credibility of those who have 
confirmed the beneficiary's employment, counsel has not sufficiently explained why we should accept 
attestations about the terms and conditions in a document in lieu of the document itself. Without the 
initial job offer, we cannot consider the petitioner's explanations about the terms and conditions set 
forth in that job offer. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. 
 The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
Page 5 
ORDER: The appeal is dismissed.