dismissed EB-1B Case: Chemistry

E.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 084 5 1960 Office: NEBRASKA SERVICE CENTER Date: mro 6 
IN RF;: Petitioner: 
Beneficiary: 
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. 3 I153(b)(l)(B) 
This is the decision of the Administrative Appeals Office in your case. All docilments have been returneat0 
the office that originally decided your case. Any further inquiry must be made to that office. 
. - . WobeA P. Wiemann, Director 
Admtnistratlve Appeals Office 
EPld 04 084 5 1960 
Page 2 
DHSaSSHON: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal wiiI be dismissed. 
The petitioner is a stzte education institution. It seeks to classify the beneficiary as an outstanding researcher 
pursuant to section 203(b)(l)(B) of the hnigration and Nationality Act (the Act), 8 U.S.C. 5 ll53@)(lji(B). 
The petitioner seeks to employ the beneficiary in the United States as a researchladju-act professor--Chemistry. 
The director determined that the petitioner had not established that it had offered the beneficiary a permanent 
job as of the date of filing. 
CPra appeal, the petitioner submits additional evidence, including the beneficiary's employment contract. 
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 tine 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) withn a university 
or institution of higher education to teach in the academic area, 
( for a cornparabIe 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 instit~te of a private employer, if the 
department, division, or institute employs a: least 3 persons full-time in 
research activities and has achieved doctimented accomplishments in an 
academic field. 
The regulation at 8 C.F.R. § 204.5(i)(3)(ili) provides that a petition n~st be accompanied by: 
An offer of employment from a prospective United States empioyer. A labor certification is not 
required for this classification. The offer of enployrnent shall be in the form of a letter from: 
(A) A United States university or institution of higher learning offering t?le alien a 
tenurcd or tenure-track teaching positior. in the alien's academic field; 
LIN 04 084 51960 
Page 3 
(B) A Un~ted States university or imtitution of higher learning offering the alien a 
permanent research position in the alien's academic field; or 
(f) 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 !east three persons fbll-time in research 
positions, and that it has achieved documented accornpIishmenis in an academic fieId. 
The regulation at 8 C.F.R. § 204.5(i)(2), provides, in pertinent part: 
Pemtanent, in reference to a research position, means either tenured, tenure track, or for a term 
of iadefic~te or u~!irmted duration, and in which the employee will ordinarily have an 
expectation of continued employment unless there is good cause for termination. 
On Part 4 of the petition, the petitio2er indicated that the proposed employment was a permanent position. The 
petitioner submitted a letter from Dr. chair of the Department of Civil Engneering, addressed 
to Citizenship and Immigration Services (CIS), asserting thzt the petitioner was performing research in the 
petitioner's geo-environmental research laboratory and collaborating with the College of Engineering in addition 
to "filling a much-needed role as an adjunct professor in the Chemistry Department here." This document does 
not constitute a job offer from the petitioner to  he bmeficiary. Ch Februany 9, 2005, the director requested 
evidence that the petitloner had extended a permanent job offer to the beneficiary. 
the petitioner submitted a letter addressed to CIS fiom the petitioner's president, 
ovides the same information provided by Dr. In light of the petitioner's 
requested evidence, the director accessed the petitioner's website, www.boisestate.edu, where it located the 
3etitioner's policy manual. The director noted that the policy manual references employment contracts and 
provides that nontenured faculty "have no continued expectation of employment beyond their current contract of 
~mployment."' The director further noted that the record lacked evidence that the petitioner had offered the 
beneficiary a tenured m tenure-track position. Thus, the director concluded that the petitioner had not 
demonstrated that it had ~.ade a qualifying job offer to the beneficiary. 
On appeel, counsel asserts that the petitioner initially hired the beneficiary as a postdoctoral research associate 
on January 21, 2003 and offered the beneficiary a "pemnent" position as set forth in a rernorandum dated 
Ju~e 18, 2003. Counsel further asserts that job offer letters are not required and that the policy manual oxly 
relates to official faculty, which does not include the beneficiary. Finally, csllnsei asserts that all "permanent" 
professional staf?, including tenured pursuant to annuai contracts." The petlt~oner 
submits a January i0, 2003 letter from Director of Affirmative Action at the petition~ng 
institution, asserting that the professor from January 21, 2003 though 
January 20, 2004. The petitioner also submits a J-me 18, 2803 memorandurn regarding a "permanent 
a.spo~ntment." The tms of the job are not provided in the memorandum. Finally, the petitioner submitted the 
beneficiary's July 2003 and August 2005 employment contracts for a postdoctoral research associate position 
I 
We note that the manual fruther provides that all nontenured faculty have fixed terns of employment arrd 
that reappointment of a facuIty employment contract "is subject solely to the discretion of the hln~versity 
President." 
and a research scientist position, respectively. Both contracts p~ovide a speclfic term of empioyment and 
provide that the "length or "type" of appointment IS for 12 mo3t:hs. L? addition, t3e 2005 contract spec~fies that 
it IS not a tenure or tenure-track apporntment. 
We concur with the director that the ord~nary meaning of an "offer" requires tnat it be nade to the affeaee, not a 
third party. Reg~latory language requiring that the offer be made "to the beneficiary" would s~mply be 
redu~dant. Thus, a letter addressed to CIS is not a job offer wlthn the ordinary rneaxmg of that phrase. 
Nevertheless, a signed contract with the terms and condit~ons of the job can serve as sufficient alternative 
evidence. 
The petitioner must establish the beneficiary's eligibility as of the date of filing, February 3, 2004. See 8 C.F.W. 
4 :03.2@)(12); Matter of Katigbak; 14 I&N Dec. 45, 49 (Corn. 1971). The petitioner has not offered the 
beneficiary a E€xIllr:: or tenure-track position. 'Sh.~s, the petitioner must demonstrate that the job offered is 
"permanent" as defined in the regulation at 8 C.F.W. $204.5(i)(2), quoted above. The petitioner's personnel 
policies are not a consideration as the regulation defining permanent is binding on CIS. 
The beneficiary's employment contracts for the postdoctoral research and research scientist pcsitio~s both 
indicate that the position is for a fixed 12-month tm. The record contains no evidence that reappointment at 
the petitioning institution is automatic without cause, as opposed to discretionary. Thus, the petitioner has not 
demonstrated that is has offered the beneficiary a "permanent" position as defined above. 
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.