dismissed EB-1B Case: Molecular Biology

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
V. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: NOV 1 5 ?a# 
LIN 03 257 50091 
IN RE: 
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. § 1 153(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 
ed your case. Any further inquiry must be made to that office. 
/] Administrative Appeals Office 
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 an education and research institution. It seeks to classifl 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. 
$ 1153(b)(l)@). The petitioner seeks to employ the beneficiary in the United States as a research scientist. 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, the petitioner submits a new letter addressed to the director and an earlier letter relating to the 
beneficiary's promotion fiom postdoctoral fellow to research scientist. 
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) 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 
(III) 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. $ 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An offer of employment fi-om 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 fiom: 
(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; 
(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 failure in the regulations to require a job offer "addressed to the beneficiary" does not imply that a letter 
to the director can be considered a job offer. Such language would be redundant as an offer can only be 
made to an offeree. 
Finally, 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 term 
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 from Dr. d Chairman of the Department of Molecular Genetics, 
Biochemistry and Microbiology, addresse to Citizenship and Immigration Services (CIS), asserting that the . , - 
beneficiary had been promoted-from a postdoctoral fellow to researchassociate to research scientist. The only 
terms of the beneficiary's position that Dr.-s that it is full-time. This document does not 
constitute a job offer from the petitioner to the beneficiary. On April 12, 2005, the director requested evidence 
that the petitioner had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted a May 3, 2005 letter co-signed by Dr and Dr. 
and addressed to the beneficiary. The letter indicates that it is "a 
appointment as a Research Scientist, a position in the unclassified civil service." The letter further states that an 
unclassified position "serves at the pleasure of the Board of Trustees and as an at will employee both you and 
the University are free to end your employment if they find it necessary. This appointment is open ended, but 
necessarily it is contingent upon continued performance and upon availability of outside funding." Finally, the 
letter notes the availability of funding through 2009. 
The director concluded that the petitioner had not submitted the initial evidence required by the regulations, the 
original job offer letter. In addition, relying on the definition of "at will" in Black's Law Dictionary, the director 
concluded that "at will" employment could not meet the definition of permanent quoted above. 
On appeal, the petitioner submitted a letter fro- Dean of the petitioning university, asserting 
that the research scientist position "is a permanent position in that it is of indefinite duration in which [the 
beneficiary] has an expectation of continued employment unless there is good cause for termination." = 
does not attempt to explain the "at will" language used in the letter addressed to the beneficiary. 
Page 4 
In addition, the petitioner provides an April 4, 2003 letter from Dr:- addressed t 
requesting a waiver of the recruitment process for he promotion of the beneficiary from postdoctor 4 fellow to 
research scientist. The letter provides that the request is being made to allow the beneficiary to be listed as a 
principle investigator on grant proposals. The petitioner also submitted evidence that the National Institutes of 
Health (NM) requires grant applicants to establish that "individuals' visas will allow them to remain in this 
country long enough for them to be productive on the research project." Nothing in the information from NIH 
indicates that principle investigators must be permanent employees who can only be terminated for cause. 
While the dean of a university is a credible authority regarding the terms and conditions of a particular position 
at that universityyls to reconcile his statements with other evidence of record. As noted by the 
director, the May 3,2005 letter unambiguously states that the beneficiary's position is unclassified, meaning "at- 
will," and that either the university or the beneficiary may end the employment "if they find it necessary."' As 
quoted by the director, Black's Law Dictionary 545 (7th ed. 1999) defines "employment at will" as 
"Employment that is usu. undertaken without a contract and that may be terminated at any time, by either the 
employer or the employee, without cause." (Emphasis added.) Dean Sacher does not address the use of this 
language in the letter addressed to the beneficiary or reference university regulations defining "at will" 
differently than as defined in Black's Law Dictionary or reflecting that "unclassified" positions can only be 
terminated for cause. Thus, the petitioner has not overcome the director's valid concerns on appeal. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
1 
The petitioner's website, htipJwehcentral, goes further, requiring 
that appointment letters for nonclassified positions state that "both [the employee] and the University remain 
free to end [the employee's] employment with the University for any reason or for no reason at all." 
(Emphasis added.)