dismissed EB-1B Case: Liquid Crystal Research

U.S. Department of Homeland Security 
20 Mass Ave , N.W., Rm A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 03 107 51420 Office: NEBRASKA SERVICE CENTER Date: 
IN RE: Petitioner: 
Beneficiary: 
- 
PETITION: immigrant Petition for Alien Worker as an Outstanding Professor or Researcher pursuant to 
Section 203(b)(l)(B) of the Immigration and Nationality Act. 8 U.S.C. 8 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
d your case. Any further inquiry must be made to that office. 
LIN 03 107 51420 
Page 2 
DISCUSSION: 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 will be dismissed. 
The petitioner is a university. It seeks to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(B), as an 
outstanding professor or researcher. The petitioner seeks to employ the beneficiary as a "Research Associate." 
The director determined the petitioner had not established that it extended an offer of permanent employment 
to the beneficiary. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 
(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) states that a petition for an outstanding professor or researcher must 
be accompanied by: 
(iii) 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; 
LIN 03 107 51420 
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(B) A United States university or institution of higher learning offering the alien a permanent 
research position in the alien's acadeinic field; or 
(C) A p. division, or institute of a private employer offering the alien a permanent 
researc 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. 
As used in this section, the term "permanent," in reference to a research position, means either tenured, tenure- 
track, or for a tenn of indefinitg or unlimited duration, and in which the employee will ordinarily have an 
expectation of continued employmept unless there is good cause for termination. 8 C.F.R. 5 204.5(i)(2). 
This petition was fded on February 13,2003. The petition was accompanied by two letters addressed to the 
"Immigration and Naturalization Service" fro-ector, Liquid Crystal Institute, Kent State 
University. 
ebruary 5.2003 letter states: 
I. [The beneficiary] is a full-time Research Associate in the Liquid Crystal institute of Kent State 
University and is receiving an annual salary of $29,'~0 with the usual fringe benefits. The position 
offered to [the beneficiary] is not temporary; there is/no set date when he must leave his position. His 
employment will continue unless he is terminated, as s"et forth in University and departmental policies, 
. procedures, by-laws and contracts, etc. 
ovember 14, 2002 letter states: "In lanu& 2002, [the beneficiary] was offered the position of .- 
Research Associate." The record, however, included no evidence of the January 2002 job offer from the 
petitioner to the beneficiary for the Research Associate @sition. 
The regulation at 8 C.F.R. I 204.5(i)(3)(iii)(B) specifica/ly requires that "[tlhe offer of employment shall be 
in the form of a letter from . . . [a] United States university or institution of higher learning offering the 
alien a permanent research position in the alien's academic field." [emphasis added1 The evidence 
accompanying the petition included no formal job offer lktter i.e. a et er from the petitioner addressed to the 
beneficiary that sets forth a binding offer of emp1oymedt. 1+) February 5, 2003 letter indicates that 
the beneficiary is employed by Kent State University: but -it is not an offer of permanent employment 
addressed to the beneficiary. Rather, it is a letter to the";'~mmi~ration and Naturalization Service" verifying 
the petitioner's intention to continue employing the benebciary. This letter does not constitute a formal offer 
of employment; indeed, it indicates that the beneficiary pas 
January 2002 Research Associate position job offer cited in November 14, 2002 letter). The 
record does not contain any documentation, pre-dating 4e date, that initiated an employer- 
employee relationship between the petitioner and the benkficiary or otherwise extended a permanent job offer 
from the petitioner to the beneficiary. Nor is there any eiidence, showing that the Kent State University has a 
personnel system in place that grants the Director of thj Liquid Crystal Institute sole authority to extend a 
permanent job offer to a university employee. For ex+ple, the petitioner has not provided a copy of its 
1 
LIN 03 107 51420 
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official administrative hiring procedures related to pe&nent research positions indicating who has authority 
to issue job offer letters. 
On October 9, 2003, the director requested specific documentation pertaining to the absence of a job offer 
letter from the petitioner to the beneficiary. The diidctor's request for evidence stated: "Please submit a I complete copy of the actual offer of employment made by Kent Statue University to [the beneficiary]." 
, 1. 
In response, the petitioner submitted a letter fro irector, Liquid Crystal Institute, 
Kent State University, dated November 19, eficiary. No explanation was 
provided regarding why the petitioner did not subdt evidence of the original January 2002 Research 
Associate position job offer cited in~ovembkr 14,2002 letter. 
This letter is to confirm your continued employment) with the Liquid Crys,tal Institute. This position is 
not temporary; there is no set date when you must leave the position. The annual salary is $30,616.75, 
I with the usual fringe benefits. As we have discussed, the job offered to you served as the basis for 
filing the Immigrant Petition for Alien Worker, ~orrnll-140, on your behalf on February 14,2003. This 
offer was previously reduced in writing for the dgration %exvice on February 5, 2003 in a letter 
addressed to the Agency from-or birector of the Institute. However, we would like 
your signature on this letter to prove that you revikwed the terms of the offer before we filed the 
petition. 1 
Of course, your employment should continue unless you are terminated, as set forth in University and 
Deparhneptal policies, procedures, by-laws and contiacts, etc. I wouId also like to note in this letter 
I that as the Director, I am authorized to recommend the hiring and termination of liquid crystal research 
associates to the Provost, whose decision is subject tb approval by the Kent State University Board of . I Trustees. 
"November 19, 2003 letter is a job confirmation letter rather than the original version of 
employment made by Kent Statue University to [the bkneficiary]" (as requested by the 
director). The petitioner failed to provide evidence relatkd to the original Research Associate job offer from 
January 2002. -1t is further noted that, according to November 19, 2003 letter, it is the 
Provost (whose decision is subject to approval by Board of Trustees), rather than 
the Director of the Liquid Crystal Institute, who is authbrized by the university to hire research associates. 
The November 19, 2003 letter fromdicates that the Director of the Liquid Crystal 
Institute must submit his hiring recommendations tlo the Provost for action. Therefore, without 
contemporaneous evidence showing that the Provost dad issued the beneficiary an offer of permanent 
employment or had directly approved the terms of emploiment as stated in the letters from the Director of the 
Liquid Crystal Institute, we cannot conclude that a valid job offer from the university to the beneficiarv 
existed as of this petition's filing date. 
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The regulation at 8 C.F.R. 5 163.2(b)(12) states, in pertinent part: "Effect where evidence submitted in 
response to a request does not ettablish eligibility at the time offiling. An application or petition shall be 
denied where evidence submittep in response to a request for initial evidence does not establish filing 
eligibility at the time the application or petition was filed." The letter submitted in response to the director's 
request for evidence fails to de&nstrate that a permanent job offer from the Kent State University to the 
beneficiary existed as of this petlt~pn's filing date (February 13, 2003). 
The director denied the petition, st(ating: 
Eligibility for this immigrant classification for both professors and researchers hinges on a written offer 
of permanent employment . . . Pursuant to binding case law, the petitioner's November 19,2003 letter 
cannot, even were it otherwise lacceptable evidence, retroactively demonstrate that a qualifying offer of 
employment existed as of Febqary 13,2003. 
The November 19, 2003 lettdr is . . . problematic because it does no more than "confirm" the 
beneficiary's "continued empl&ment," in regards to which the petitioner has not furnished a copy of an 
offer, contract or agreement betbeen the parties. 
refer to University by-laws, contracts, policies and 
Kent State Universitv administrative andlor hiring - 
authorities docu corroborating that the nature of the position relative to other 
ment, it appears that involvement by at least the o&ce of 
the Provost is neede hiring recommendations. 
We concur with the preceding observations from the director's decision. However, we withdraw the 
director's observations related t-sePtember 26, 2000 letter. 
* 
The director's decision stated: , 
In a September 26, 2000 letter, described the beneficiary's existing employment as 
being that of a "postdoctoral fellow." The Service cannot simply assume that the beneficiary's existing 
employment is permanent because, first, the record shows that the employment is pursuant to an H 
nonimmigrant visa which, by definition, is for )temporary employment. Second, postdoctoral 
appointments generally are considered by academic institutions themselves as preparatory for 
permanent employment. 
-September 26,2000 letter was clearlylsuperseded b-ovember 14,2002 letter 
indicating that "[iln January 2002, [the beneficiary] was offered the position of Research Associate." 
Therefore, contrary to the director's observation, it is apparent that the beneficiary was a Research Associate 
rather than a Postdoctoral Fellow as of this petition's filini date. 
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On appeal, counsel states that Citizenship and Immigration Services appears to deny the petition based on the 
conclusion that the beneficiary is employed pursuant to an H-1B visa. Here, counsel misstates the director's 
observation. The director's decision simply noted that the beneficiary's existing employment is under a 
temporary, non-immigrant visa and, therefore, it cannot be automatically assumed that a permanent job offer 
exists. Clearlrly, the director did not state that the beneficiary's employment under an H-IB non-immigrant 
visa is a disqualifying factor for the immigrant visa classification sought by the petitioner. The issue here is 
whethe~ the petitioner had presented a valid job offer to the beneficiary for a permanent research petition as of 
the petition's filing date. An alien researcher can be pfesent in the United States under H-IB status and still 
receive a permanent job offer. 
The petitioner's failure to present contemporaneous evidence of the original job offer from the university to 
the bene$ciary for a permanent research position as a "Research Associate" is a crucial omission from the 
record. If such a permanent job offer did indeed exist in January 2002 (as stated in Dr. West's November 14, 
2002 letter), it is inexplicable as to why the petitioner, which was afforded ample opportunity to provide such 
evidence, has failed to do so even now at the appellate stage. In this case, the record contains no evidence of 
a job offer between the petitioner and the beneficiary tdat existed at the time of filing and which sets forth a 
binding offer of permanent employment. See Matter of Katigbak, 14 I&N Dec. 45 (Reg. Cornm. 1971). A 
petitioner must establish eligibility at the time of filing. 
Pursuant to the regulations, the petitioner's failure to. provide contemporaneous evidence of the original 
permanent job offer creates a presumption of ineligibility. The regulation at 8 C.F.R. 5 103.2(b)(2)(i) states, 
in pertinent part: 
The nonexistence or other unavailability of required evidence creates a presumption of ineligibility. If 
a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an 
applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school 
records, pertinent to the facts at issue. 
In this case. the petitioner has not presented the original permanent job offer letter for the Research Associate 
position (pre-dating the petition), nor has it provided contemporaneous secondary evidence from the office of 
the Provost of Kent State University, for example, demonstrating that such a "permanent" job offer existed 
between both parties as of February 13, 2003. There is no indication that the Provost's office had approved 
the Director of the Liquid Crystal Institute's recommendation to offer the beneficiary a permanent research 
position as of this petition's filing date. 
For the above stated reasons, we find petitioner has not established that it extended an offer of permanent 
employment to the beneficiary as of the filing date of the petition. The record does not contain any qualifying 
documentation, pre-dating the petition's filing date, that initiated an employer-employee relationship between 
the petitioner and the beneficiary or otherwise extended a permanent job offer from the petitioner to the 
beneficiary. Therefore, the petitioner has not established eligibility pursuant to 8 C.F.R. 5 204.5(i)(3)(iii). 
The burden of proof in visa petition proceedings remains dntirely with the petitioner. Section 291 of the Act, 8 
U.S.C. § 1361. Here, the petitioner has not sustained that b&&n. Accordingly, the appeal will be dismissed. 
LIN 03 107 5 1420 
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ORDER: The appeal is dismissed.