dismissed EB-1B Case: Medicine

-ddetedti 
prevent My tanmmul- 
invasion of pemr)nal priva~p 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: SEF' 1 6 2005 
LIN 03 259 50549 
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. tj 11 53(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been retui-ned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 1 
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 an educational/research institution. 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. 
8 1153(b)(l)(B). The petitioner seeks to employ the beneficiary in the United States as a "researcher." 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, counsel asserts that the beneficiary's "job, rather than the position, is permanent." 
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) withn 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 
(m) 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. 8 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
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; 
Page 3 
(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. 
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 terrn 
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 position. The 
petitioner submitted a letter fro-ddressed to the beneficiw verifying that the beneficiary is 
"employed and in good standing as a full-time postdoctoral fellow in the Department of Medicine." 
On November 25, 2003, the director requested evidence that the petitioner had extended a permanent job offer 
to the beneficiary, such as: 
An executed contract between the university and the beneficiary; 
r Official university guidelines indicating that postdoctoral research associates are 
normally considered permanent employees; or 
University documents indicating that, while postdoctoral positions are generally 
temporary, a specific, written exception has been made for this beneficiary. 
In response, the petitioner submitted a letter jointly signed by Dr. Stephen B. Hall, an associate profes:jor, and 
Robert L. Vieira, Vice Provost. The letter, addressed to the director, asserts that the beneficiary "is employed as 
a researcher with an annual salary of $35,000 and the full benefits appropriate to his position." The letter 
further asserts that the beneficiary's employment "is ongoing with no definite date of termination." The letter 
then discusses the funding of the beneficiary's research project. 
The director concluded that the references to funding suggested that the position was not permanent and noted 
the beneficiary's relatively low salary. On appeal, counsel asserts that the beneficiary's employment is 
permanent, regardless of whether the "position" is permanent. Counsel asserts that the beneficiary has been 
promoted from a postdoctoral fellow to a research associate. Finally, counsel asserts that funding considerations 
do not made the position temporary and that wages are not a consideration for the classification sought. The 
petitioner submits a letter from Dr. Hall asserting that his "unequivocal intention is to employ [the beneficiary] 
on a permanent basis." Dr. Hall further notes that all research is contingent upon funding. 
We note at the outset that the ordinary meaning of an "offer" requires that it be made to the offeree, not a third 
party. Regulatory language requiring that the offer be made "to the beneficiary" would simply be redundant. 
Thus, a letter addressed to Citizenship and Immigration Services is not a job offer withn the ordinary meaning 
of that phrase. 
We do not consider counsel's distinction between permanent employment and a permanent position persuasive. 
The regulation at 8 C.F.R. fj 204.5(i)(3)(iii)(C) quoted above requires a letter offering the beneficiary "a 
permanent research position." (Emphasis added.) The issue is not merely the petitioner's future intentions, but 
the actual job offer extended as of the date of filing. 
While we concur with counsel and Dr. Hall that funding considerations in general do not necessarily render an 
otherwise permanent job offer "at-will" employment, the record contains no evidence that the beneficiary had 
been offered a position at the time of filing from which he could only be fired for cause, including lack of 
funding in general.' The only letter addressed to the beneficiary confirms his position as a postdoctoral fellow. 
The record contains no evidence that postdoctoral fellow positions with the petitioner are permanent positions 
that can only be terminated for cause. Whatever intentions Dr. Hall may have had to promote the beneficiary to 
a permanent position in the future, the issue is whether a permanent position had been offered to the beneficiary 
as of the date of filing. The record contains no evidence that the petitioner had extended such an ofkr to the 
beneficiary as of that date. In fact, assuming that the petitioner has now hired the beneficiary as a research 
associate, the record contains no evidence that such positions can only be terminated for cause. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, :3 U.S.C. 
5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
1 
We make no finding regarding the permanency of positions that are specifically tied to a particular grant, as 
opposed to funding in general.