dismissed EB-1B Case: Chemistry

US. Department of Homeland Security 
20 Mass. Ave.. N.W., h. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Imdgra"eon 
Services 
FILE: Em 04 084 5 1 960 Offace: mBmSKf4 SERVICE CENTER Date: pf~-- L- kd 2 92353 
PETITION: Immigrant Petrtion for Alien Worker as Outstanding Prokssor or Researcher Pu~suafit to 
Section 203(b)(I)(B) of the Migation and Nationality Act, 8 U.S.C. § B 153(b)(B)(B) 
ON BEHALF OF PETITIONER: 
This is the decasion of the Administrative Appeals Of5ce in your case. All docmnents have been aaretumed'to 
the ofice that ongmally decided your case. Any further mquxry mst be anadc':o that office. 
-- Robed P. Wiemanza, Director 
Adrnmnistrative Appeals Office 
LIN 04 084 51960 
Page 2 
DISCUSSION: The employment-basd im~grant wsa petntron was denied by the Dnrector, Nebraska Sewnce 
Caiater, and ns cow before the Admn~s$rat~ve Appeals Office on appeal. The appeal w1Z1 be dtsmissed. 
The pet~tnoner 1s a state educat~on nnst~tutnon It seeks to class~$l the beneficaary as an outsbndnng resea~cher 
pursuant to section 203(b)(1)@) of the hmgration and Nat~onalnty AA (the Act), 8 U.S.C. 5 1153(b)(;)l(B). 
The petitioner seeks to employ the beneficmy m the Un~ted States as a researclialadjmct professor- hemstr try^ 
The d~rector determined that the pet~timer had not established that it had offered the beneficray a permanent 
job as of the date of filmg. 
On appeal, the pet~tioner submits additional ewdence, including the beneficiary's employment contract. 
Section 2203(b) ofthe 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. -- Pan alia. is described i~ this subparagraph if -- 
(i) the alien is recognized internationally as outstanding in a specific academic 
area, 
(ii) the alien has at least 3 years sf experience in teaching or research in the 
academic area, and 
(iii) the alien seeks to enta the United States -- 
(0 for a tenured position (or tenure-back position) with a university 
or institution of higher educatiog to teach in the academic area, 
(a) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
( 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 a; Beast 3 persons hll-time in 
research activities and has achieved doc~mented accomplishents in an 
academic field. 
The regulation at 8 C.F.R. 5 204.5(i)(3)(iri) provides that a petition nx~st be accompanied by: 
An offer of employment from a prospective Unnted States empioyer. A labor certification 1s not 
required for this classrfication. The offer of e~qloyment shall be m the form of a letter from: 
(A) A United States university or institution of higher learning offering t5e alien a 
tenwed or tenure-track teaching positio~ in the alien's academic field; 
LIP4 04 084 5 1960 
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(B) A Un~ted States university or instntution of higher learning offering the alia a 
pemanent research position in the alien's academic field; 0s 
(C> A depament, division, or institute of a private employer offering the alien a 
pemanent research position in the alien's academic field. The department, division? or 
instib~te must demonstrate that it employs sat least three persons hll-time in research 
positions, and that it has achieved documented accompBishents ~n an academic field. 
The regulation at 8 C.F.R. $204.5(i)(2), provides, in pertinent part: 
Permanent, m reference to a research position, means either tenured, tenure track or for a tern 
of kdefimte or m;imted duration, and in which the employee will ordinarily have an 
expectation of continued employment unless there is good cause for termination. 
On Pas3 6 of the petrtnon, the petltao3er indicated that the proposed employment was a pemanent posat~on~ The 
petat~mer subm~tted a letter kom DT. Stephen Affleck, Chair of the Department of CmnB Engneenng, addressed 
to C~tizensh~p and gration Semces (CIS), asserting that the petntnoner was perfomnng research in the 
pet~t~mer's geo-enwronmental research laboratory and collaboratang w~th the College of Engmeenng nn addrtaon 
to "fillmng a much-needed role as an adjunct professor an the Chem~stry Depament here." Thns document does 
not const~tute a job ofkr from the petitloner to the beneficnay. Ch February 9, 2005, the dnrector requested 
emdecce that the petnt~oner had extended a pemanent job offer to the beneficmy. 
h response, tlze petitloner subm~tted a letter addressed to CIS from the petitroner's president, 
ovndes the same infomation provided Sy Dr. Affleck. In libt of the petitioner's fai 
requested evidence, the director accessed the petitloner's website, .bonsestate.edu, where it located the 
petntimer9s pol~cy manual. The dlrector noted that the policy manual references emylopent contracts and 
provides that nontenured faculty "have no cont~nued expectation of employment beyond their tun-ent contract of 
ernployrrnae3t."' The director mher ~zoted that the record lacI<ed evidence that the petitioner had offered the 
beneEcnaq a tenmed or tenure-track posit~on~ Ths, the director concluded that the petitioner had not 
demonstrated that nt had made a quahfying job offer to tk be~eficiary. 
On appeal, counsel asserts that the pet~time~ namt~ally hired the beneficrary as a postdoctoral research associate 
on January 21, 2003 and offered the beneficnary a "pemanent9' posatron as set forth I: a memorandum dated 
Jure 18, 2003. Counsel further asserts that job offer letters are not zequrred and that the policy manual only 
relates to offic~al faculty, which does not mclude the beneficiaq. Fmally, cwmsel asserts that all ""pmanent" 
profess~onal staff, nncludang temed faculty members, "serve purslnant to amuai contracts." The petntloner 
submits a Jan~aq 10, 2003 letter from Elzabeth Hecker, Dnrecto: of Affimat~ve Actnon at the petltlonlng 
inst~tznt~on, assertang that the beneficiary was erqloyed as a research pzofessor from January 21, 2003 though 
January 20, 2004. petatloner also submlis a Tme 18, 2003 memorani!un regardmg a "permanent 
aq~omtrnent." The terns of the job are not promded nn the memorandum. Fina:By, the petatloner subm~tted the 
beneficlarg7's July 2003 and August 2005 employment contracts for a postdoctoraI research associate pos~tnon 
I 
We note that the manznal fiher provldes that all nontenured faculty have fixed terns of elxployment ad 
t5at reappointment of a faculty employment contract "is subject solely to the dascretion of the KJn~vess~ty 
Pressdent." 
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and a research scientist position, respectively. Both contracts psovide a speclaic tern of en$oyment and 
prowde that the "lengt8a" or "type7' of appointment as for 12 month. addit~on, the 2005 contract specifies that 
it is not a tenure or tmme-track appointment. 
We concur with the &rector that the ord~nary meaning of an "offer" requires that it be nade to the offeree, not a 
third party. Reg~latory 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 with the ordinary meaning of that phase. 
Neven-tixless, a signed contract with the terns and conditions of the job can serve as sufficient altmative 
evidence. 
The petrlloner must estabhsh the beneficaih,y7s e'lagbality as of the date of filang, Febmary 3,2004. See 8 C.F.R. 
5 103.2@)(12); Matter of Katigbak; 14 Id Dec. 45, 49 (Corn. 1971). The petltaoz-ner has not offered the 
beneficlay a tenure or tenme-back posation. Th~s, the pet~tloner mst demonstrate that the go5 offered ns 
""pmanent" as defined 112 the regulation at 8 C.F.R. 5 204.5(1)(2), quoted above. The petltaoner9s pe~somel 
polrcaes are not a consrderataon as the regulation definrng permanent as blndlng on CIS. 
The beneficiary's emplo went contracts for the postdoctoral research and research scient~st positions both 
indicate that the posatlon is for a fixed 12-month tern. The record contailas no evidence that reapporntrnent at 
the petit~ming mstntution is automatic withoat cause, as opposed to discretionary. Thus, the pet~tioner has not 
demonstrated that as has offered the beneficaary a "pernanent" pos~tion as defined above. 
The buden of proof in these proceedings rests solely with the pet~t~mer. Section 291 sf the Act, 8 U.S.C. 
$ 1361. The petatloner has not sgstained that burden. Accordlngly, the appeal will be drsmassed. 
ORDER: The appeal is dismissed.