dismissed EB-1B Case: Liquid Crystal Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: LIN 03 107 51420 Office: NEBRASKA SERVICE CENTER Date: 
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. All documents have been returned to 
ecided your case. Any further inquiry must be made to that office. 
L 
Robert P. Wiemann, Director 
Administrative Appeals 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. 3 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: 
(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 -- 
(D 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. 3 204.5(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) Ak, 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 term of indefinite 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. $204.5(i)(2). 
This petition was filed on February 13, 2003. The petition was accompanied by two letters addressed to the 
'LImmigration and Naturalization Service" fro-ector, Liquid Crystal Institute, Kent State 
University. ^"a . 
ebruary 5,2003 letter states: 
[The beneficiary] is a full-time Research Associat the Liquid Crystal Institute of Kent State 
University and is receiving an annual salary of with the usual fringe benefits. The position 
offered to [the beneficiary] is not temporary; date when he must leave his position. His 
employment will continue unless he is in University and departmental policies, 
procedures, by-laws and contracts, etc. 
ovember 14, 2002 letter states: "In Janu 4 2002, [the beneficiary] was offered the position of : 
Research Associate." The record, however, included 40 evidence of the January 2002 job offer from the 
petitioner to the beneficiary for the Research Associate p, sition. 
t 
The regulation at 8 C.F.R. $ 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 univ rsity or institution of higher learning offering the 
alien a permanent research position in the alien's 1 cadernic field." [emphasis added] The evidence 
accompanying the petition included no formal job offer from the petitioner addressed to the 
beneficiary that sets forth a binding offer of employme February 5, 2003 letter indicates that 
the beneficiary is employed by Kent State offer of permanent employment 
addressed to the beneficiary. Rather, it is a Naturalization Service" verifying 
the petitioner's intention to continue does not constitute a formal offer 
of employment; indeed, it indicates that the beneficiary ted an offer made earlier (i.e., the 
January 2002 Research Associate position job offer November 14, 2002 letter). The 
record does not contain any documentation, date, that initiated an employer- 
employee relationship between the petitioner and the ben' ficiary or otherwise extended a permanent job offer 
from the petitioner to the beneficiary. Nor is there any e {idence, showing that the Kent State University has a 
personnel system in place that grants the Director of thy 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 
i 
LIN 03 107 51420 I 
r )I 
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official administrative hiring procedures related to pe*nent research positions indicating who has authority 
to issue job offer letters. 
I 
On October 9, 2003, the director requested specific d pertaining to the absence of a job offer 
letter from the petitioner to the beneficiary. The for evidence stated: "Please submit a 
complete copy of the actual offer of employment University to [the beneficiary]." 
In response, the petitioner submitted a letter irector, Liquid Crystal Institute, 
Kent State University, dated November 19, No explanation was 
provided regarding why the petitioner did not sub t evidence of the original January 2002 Research 
Associate position job offer cited in-Novear 14,2002 letter. 
ovember 19, 2003 letter states: 
\" 
This letter is to confirm your continued employment1 with the Liquid Crystal Institute. This position is 
not temporary; there is no set date when you must le ve the position. The annual salary is $30,616.75, 
with the usual fringe benefits. As we have discuss d, the job offered to you served as the basis for 
filing the Immigrant Petition for Alien Worker, Form 1 1-140, on your behalf on February 14,2003. This 
offer was previously reduced in writing for the 'gration Service on February 5, 2003 in a letter 
addressed to the Agency from-or irector of the Institute. However, we would like 
your signature on this letter to prove that you revi wed the terms of the offer before we filed the 
petition. I I 
Of course, your employment should continue unless , ou are terminated, as set forth in University and 
Departmental policies, procedures, by-laws and cont acts, etc. I would also like to note in this letter 
that as the Director, I am authorized to recommend th hiring and termination of liquid crystal research 
associates to the Provost, whose decision is subject t approval by the Kent State University Board of 
Trustees. i 
&~ovember 19, 2003 letter is a job letter rather than the original version of 
"the actual offer of employment made by Kent Statue [the beneficiary]" (as requested by the 
director). The petitioner failed to provide evidence relathd to the original Research Associate iob offer from 
January 2002. It 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 by the university to hire research associates. 
The November 19, 2003 letter from" ndicates that the Director of the Liquid Crystal 
Institute must submit his hiring recommendations tb the Provost for action. Therefore, without 
contemporaneous evidence showing that the Provost ad issued the beneficiary an offer of permanent 
employment or had directly approved the terms of emplo as stated in the letters from the Director of the 
Liquid Crystal Institute, we cannot conclude that a offer from the university to the beneficiary 
existed as of this petition's filing date. 
LIN 03 107 51420 
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The regulation at 8 C.F.R. 5 states, in pertinent part: "Effect where evidence submitted in 
response to a request does not at the time offiling. An application or petition shall be 
denied where evidence a request for initial evidence does not establish filing 
eligibility at the time the filed." The letter submitted in response to the director's 
request for evidence job offer from the Kent State University to the 
beneficiary existed as 
The director denied 
Eligibility for this immigrant c assification 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 cceptable evidence, retroactively demonstrate that a qualifying offer of 
employment existed as of Feb ary 13,2003. 
I 
The November 19, 2003 is . . . problematic because it does no more than "confirmy7 the 
beneficiary's "continued in regards to which the petitioner has not furnished a copy of an 
offer, contract or 
Although both 
P 
refer to University by-laws, contracts, policies and 
procedures, the record lacks ocuments from Kent State University administrative and/or hiring 
authorities corroborating that the nature of the position relative to other 
tatement, it iippears that involvement by at least the office of 
recommendations. 
We concur with the preceding observations from the director's decision. However, we withdraw the 
director's observations related t~e~tember 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 
nonirnmigrant 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 clearlyl superseded b-ovember 14,2002 letter 
indicating that "[iln January 2002, [the beneficiary] pas 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 filinb date. 
LIN 03 107 5 1420 
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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 canno4 be automatically assumed that a permanent job offer 
exists. Clearly, the director did not state that the ben$iciaryYs employment under an H-1B non-immigrant 
visa is a disqualifying factor for the immigrant visa claksification sought by the petitioner. The issue here is 
whether 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 pt,esent in the United States under H-1B status and still 
receive a permanent job offer. 
The petitioner's failure to present contemporaneous eviklence of the original job offer from the university to 
the beneficiary for a permanent research position as a '"~esearch Associate7' is a crucial omission from the 
record. If such a permanent job offer did indeed exist id 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 &age. In this case, the record contains no evidence of 
a job offer between the petitioner and the beneficiary thjat existed at the time of filing and which sets forth a 
binding offer of permanent employment. See Matter 07 Katigbak, 14 I&N Dec. 45 (Reg. Comm. 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 non-existence or other unavailability of required evidence creates a presumption of ineligibility. If 
a required document, such as a birth or marriage ceftificate, 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 kligibility pursuant to 8 C.ER. 3 204.5(i)(3)(iii). 
The burden of proof in visa petition proceedings remains +tirely with the petitioner. Section 291 of the Act, 8 
U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
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ORDER: The appeal is dismissed.