dismissed EB-1B Case: Oceanic And Atmospheric Sciences

identifLing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Ifomeland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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. 5 1 1 53(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
$ Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
. petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner is an institute of higher learning. It seeks to classi@ 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. 
5 1153(b)(l)(B). The petitioner seeks to employ the beneficiary in the United States as a research 
associate. 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 submits a brief and a June 6, 2006 Interoffice Memorandum from Michael Aytes, 
Acting Director for Domestic Operations, Citizenship and Immigration Services (CIS). For the reasons 
discussed below, the petitioner has not overcome the director's decision by submitting the required 
initial evidence in this matter, a job offer issued to the beneficiary that predates the filing of the petition. 
Moreover, the record is inconsistent regarding the position actually held by the petitioner as of the date 
of filing. 
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, 
( 
 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. 5 204.5(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; 
(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. 
(Emphasis added.) Black's Law Dictionary 11 11 (7th ed. 1999) defines "offer" as "the act or an 
instance of presenting something for acceptance" or "a display of willingness to enter into a contract 
on specified terms, made in a way that would lead a reasonable person to understand that an 
acceptance, having been sought, will result in a binding contract." Black's Law Dictionary does not 
define "offeror" or "offeree." The online law dictionary by American Lawyer Media (ALM), available 
at www.law.com, defines offer as "a specific proposal to enter into an agreement with another. An 
offer is essential to the formation of an enforceable contract. An offer and acceptance of the offer 
creates the contract." Significantly, the same dictionary defines offeree as "a person or entity to 
whom an offer to enter into a contract is made by another (the offeror)," and offeror as "a person or 
entity who makes a specific proposal to another (the offeree) to enter into a contract." (Emphasis 
added.) 
In light of the above, we concur with the director that the ordinary meaning of an "offer" requires that it 
be made to the offeree, not a third party. As such, regulatory language requiring that the offer be made 
"to the beneficiary" would simply be redundant. Thus, a letter addressed to Citizenship and 
Immigration Services (CIS) afirming the beneficiary's employment is not a job offer within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 5 204.5(i)(2), provides, in pertinent part: 
Page 4 
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 ro osed employment was a permanent 
position. The petitioner submitted a letter fromDean of the College of Oceanic and 
Atmospheric Sciences at the petitioning institution, addressed to "Whom it May Concern," asserting 
that the petitioner was renewing the beneficiary's full-time appointment as a research associate. This 
document does not constitute a job offer fiom the petitioner to the beneficiary. The petitioner also 
submitted materials from the petitioner's website, printed August 2, 2004, that includes lists of 
"postdocs" and "research associates." The beneficiary is listed as a "postdoc." On June 2, 2005, the 
director requested evidence that the petitioner had extended a permanent job offer to the beneficiary. 
submitted a letter addressed to the beneficiary jointly signed by ~e- 
Vice Provost of Academic Affairs and International Programs. The letter, dated 
Augus 
 clarify' the beneficiary's employment as a research associate. 
The director concluded that the letter submitted in response to the request for additional evidence 
postdated the filing of the petition and was a clarification, not a job offer. The director hrther noted 
that the clarification indicates that the position is a renewable 12-month position. 
On appeal, the petitioner submits the memorandum fiom Mr. Aytes and asserts that the petitioner has 
established its intention of employing the beneficiary long term. The petitioner does not submit the 
initial job offer predating the filing of the petition. 
Nothing in the memorandum from Mr. Aytes implies that a petitioner need not submit a job offer 
issued to the beneficiary prior to the date of filing. Rather, the memorandum provides guidance as to 
how to evaluate the job offer. As discussed above, the job offer is initial required evidence. The 
petitioner has not explained why CIS should accept descriptions of the job offer in lieu of the job offer 
itself. The regulation at 8 C.F.R. § 103.2(b)(2) provides that a petitioner must demonstrate that primary 
evidence is unavailable or does not exist in order to rely on secondary evidence. The petitioner has not 
established that the primary evidence, the job offer, is either unavailable or does not exist. 
Moreover, while the petitioner has asserted in November 2004 that it was renewing the beneficiary's 
appointment as a research associate, the website materials, printed in August 2004, indicate that he was 
only a "postdoc." It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
 The petitioner has not resolved this 
inconsistency. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.