dismissed EB-1B Case: Physiology And Pharmacology

identifying data deleted to 
preveni :,ar!t ?anwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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 1153(b)(l)(B) 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
cided your case. Any further inquiry must be made to that office. 
% .YeA 
Robert P. Wlemann, Chief 
1 Administrative Appeals Office 
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 a higher 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. 5 1153(b)(l)(B). According to the petition, the petitioner seeks to employ the 
beneficiary in the United States as a "Post Doctoral fellow." 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 For the reasons discussed below, the petitioner has not overcome 
the director's basis of denial. 
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. 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 oflering 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 oflering the alien 
a permanent research position in the alien's academic field; or 
(C) A department, division, or institute of a private employer ofering 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 ofler 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 oferee) 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 ofler within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 8 204.5(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 indica 
 d employment was a permanent 
ner submitted a letter from 
 he petitioner's Vice Provost, and 
, a professor in the petitioner's Department of Physiology and Pharmacology, 
addressed to the beneficiary, asserting: 
This letter confirms our enthusiasm for offering you a full-time, on-going position as a 
Post Doctoral Fellow in the Department of Physiology and Pharmacology at [the 
petitioning institution]. We anticipate this to be an ongoing project without a definite 
termination date, and your position would be subject to the usual working conditions for 
other scientists of your rank, the availability of funding, and the Government approval 
of the relevant visa. 
. . . Again, this is an offer of on-going employment, with no specified date of 
termination. 
The director questioned whether this letter constituted the original job offer and issued a request for 
additional evidence. In response, the petitioner submitted an August 15, 2005 letter from the same 
individuals addressed to the beneficiary offering him "a continued full-time, on-going permanent 
position as a researcher." 
The director concluded that the initial letter was merely confirmation of an earlier job offer and, even if 
it was a job offer, only offered the beneficiary a postdoctoral position, which is typically temporary. 
The director further concluded that the second letter was dated after the date of filing and, thus, was not 
evidence of eligibility as of that date. See 8 C.F.R. fj 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 
45,49 (Reg. Comrn. 1971). 
On appeal, counsel asserts that the initial letter is a written confirmation of a previous oral job offer 
and, thus, is the original written job offer. Counsel further notes that The Association of American 
Universities' Committee on Postdoctoral Education in its Report and Recommendations, March 3 1, 
1998, found that it is "common for institutions either to have no time limits on the length of 
postdoctoral appointments or regularly to ignore or waive established limits." Counsel ignores, 
however, that on the previous page, the second element of the definition of a doctoral appointment used 
by the committee in assessing the use of postdoctoral researchers is that "the appointment is 
temporary." Read in context, the language quoted by counsel expresses the committee's concern that 
institutions are placing researchers in postdoctoral holding patterns without offering timely promotion 
to truly "permanent" positions. Significantly, the report found that while "the preponderance of 
postdocs expect to end up in a tenure track position, only one-fourth of recent postdocs in the surveyed 
departments actually entered such a position." (Emphasis in original.) Thus, the report found a 
"disparity" between the expectations of postdoctoral researchers and reality. 
The first paragraph of the initial letter confirms the petitioner's previously expressed enthusiasm for 
offering a position, it does not expressly confirm a previous offer made in a different context such as an 
oral offer. The letter then discusses the petitioner's expectation that the beneficiary's project will 
cotntinue without a termination date. The final sentence, while referencing an actual offer, is 
inconsistent with the first paragraph. 
Ultimately, the director advised the petitioner of her finding that postdoctoral positions are inherently 
temporary. Rather than submit evidence that the petitioner has a unique institution-wide policy 
permitting postdoctoral appointments for an indefinite period, the petitioner submitted a report 
confirming that the common definition of a postdoctoral position is that it is temporary. This report 
does not overcome the director's basis of denial. 
In the alternative, counsel asserts that the beneficiary is entitled to be "ported" from one research 
position to another due to the delay in processing the petition since the beneficiary's current position is 
the "same or similar" to the position offered as of the date of filing. Counsel relies on a May 12,2005 
memorandum from William Yates, Associate Director for Operations at CIS. 
CIS memoranda merely articulate internal guidelines for INS personnel; they do not establish judicially 
enforceable rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] 
substantive rights nor provide procedures upon which [they] may rely. Loa-Herrera v. Trominski, 23 1 
F. 3d 984, 989 (5'h Cir. 2000)(quoting Fano v. OWeill, 806 F. 2d 1262, 1264 (5th Cir. 1987)). See also 
R.L. Inv. Partners, Ltd. v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. Mar. 3,2000) afd 273 F. 3d 874 
(9th Cir.) for the proposition that unpublished decisions from this office and General Counsel opinions 
carry no precedential weight and are not binding on CIS. 
In general, an alien may acquire permanent resident status in the United States through two legal 
mechanisms: the alien may pick up their approved visa packet at an overseas consulate and be 
"admitted" to the United States for permanent residence; or, if the alien is already in the United 
States in a lawful nonimmigrant or parolee status, the alien may "adjust status" to that of an alien 
admitted for permanent residence. CJ: Section 21 1 of the Act, 8 U.S.C. § 1181 ("Admission of 
Immigrants into the United States"); Section 245 of the Act, 8 U.S.C. § 1255 ("Adjustment of Status 
of Nonimmigrant to that of Person Admitted for Permanent Residence"). 
Governing adjustment of status, section 245(a) of the Act, 8 U.S.C. 
 1255(a), requires the 
adjustment applicant to have an "approved" petition: 
The status of an alien who was inspected and admitted or paroled into the United 
States or the status of any other alien having an approved petition for classification 
under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(l) or [sic] 
may be adjusted by the Attorney General [now the CIS], in his discretion and under 
such regulations as he may prescribe, to that of an alien lawfully admitted for 
permanent residence if: 
(i) the alien makes an application for such adjustment, 
(ii) the alien is eligible to receive an immigrant visa and is admissible to the 
United States for permanent residence, and 
(iii) an immigrant visa is immediately available to him at the time his 
application is filed. 
In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act (AC21), 
Pub. L. No. 106-3 13, 1 14 Stat. 125 1-(Oct. 17, 2000). Section 106(c) of AC21 amended section 204 
of the Act by adding the following provision, codified as 8 U.S.C. 5 1154(j): 
Job Flexibility For Long Delayed Applicants For Adjustment Of Status To Permanent 
Residence- A petition under subsection (a)(l)(D) [since redesignated section 
204(a)(l)(F)] for an individual whose application for adjustment of status pursuant to 
section 245 has been filed and remained unadjudicated for 180 days or more shall 
remain valid with respect to a new job if the individual changes jobs or employers if 
the new job is in the same or a similar occupational classification as the job for which 
the petition was filed. 
Section 212(a)(5)(A)(iv) of the Act, 8 U.S.C. § 1182(a)(5)(A)(iv), states further: 
Long Delayed Adjustment Applicants- A certification made under clause (i) with 
respect to an individual whose petition is covered by section 2040) shall remain valid 
with respect to a new job accepted by the individual after the individual changes jobs 
or employers if the new job is in the same or a similar occupational classification as 
the job for which the certification was issued. 
At the time AC2 1 went into effect, legacy Immigration and Naturalization Service (INS) regulations 
provided that an alien worker could not apply for permanent resident status by filing a Fonn 1-485, 
application to adjust status, until he or she obtained the approval of the underlying Form 1-140 
immigrant visa petition. See 8 C.F.R. fj 245.2(a)(2)(i) (2000). Therefore, the process under section 
106(c) of AC21 at the time of enactment was as follows: first, an alien obtains an approved 
employment-based immigrant visa petition; second, the alien files an application to adjust status; and 
third, if the adjustment application was not processed within 180 days, the underlying immigrant visa 
petition remained valid even if the alien changed employers or positions, provided the new job was 
in the same or similar occupational classification. 
The available legislative history does not shed light on Congress' intent in specifically enacting 
section 106(c) of AC2 1. While the legislative history for AC2 1 discusses Congressional concerns 
regarding the nation's economic competitiveness, the shortage of skilled technology workers, U.S. 
job training, and the cap on the number of nonimmigrant H-1B workers, the legislative history does 
not specifically mention section 106(c) or any concerns regarding backlogs in adjustment of status 
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Page 7 
applications. The legislative history briefly mentions "inordinate delays in labor certification and 
INS visa processing" in reference to provisions relating to the extension of an H-1B nonimmigrant 
alien's period of stay. See S. Rep. 106-260, 2000 WL 622763 at * 10, "23 (April 11, 2000). In the 
200 1 Report On The Activities Of The Committee On The Judiciary, the House Judiciary Committee 
summarized the effects of AC21 on immigrant visa petitions: "[Ilf an employer's immigrant visa 
petition for an alien worker has been filed and remains unadjudicated for at least 180 days, the 
petition shall remain valid with respect to a new job if the alien changes jobs or employers if the new 
job is in the same or a similar occupational classification as the job for which the petition was filed." 
H.R. Rep. 106-1048, 2001 WL 67919 (January 2, 2001). Notably, this report further confuses the 
question of Congressional intent since the report clearly refers to "immigrant visa petitions" and not 
the "application for adjustment of status" that appears in the final statute. Even if more specific 
references were available, the legislative history behind AC21 would not provide guidance in the 
current matter since, as previously noted, an approved employment-based immigrant visa was 
required to file for adjustment of status at the time Congress enacted AC21. 
Upon review, counsel's assertions that the provisions of AC21 are relevant are not persuasive. The 
operative language in section 106(c) is the following phrase: "A petition . . . shall remain valid with 
respect to a new job if the individual changes jobs or employers." The term "valid" is not defined by 
the statute, nor does the congressional record provide any guidance as to its meaning. See S. Rep. 
106-260; see also H.R. Rep. 106-1 048. Critical to section 106(c) of AC21, the petition must be 
"valid" to begin with if it is to "remain valid with respect to a new job." Section 204(j) of the Act, 8 
U.S.C. 5 1 1546) (emphasis added). 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport, 495 U.S. 552 (1990). We are expected to give the words used in the 
statute their ordinary meaning. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 
467 U.S. 837 (1984). Furthermore, we are to construe the language in question in harmony with the 
thrust of related provisions and with the statute as a whole. K Mart Corp. v. Cartier Inc., 486 U.S. 
281, 291 (1988) (holding that construction of language which takes into account the design of the 
statute as a whole is preferred); see also COIT Independence Joint Venture v. Federal Sav. and Loan 
Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). 
The problematic issues presented by this case are primarily the result of immigration procedures that 
have arisen since the enactment of section 106(c) of AC21. As previously noted, CIS implemented 
the "concurrent filing" process on July 31, 2002 whereby an employer may file an employment- 
based immigrant visa petition and an application for adjustment of status for the alien beneficiary at 
the same time. See 8 C.F.R. $245.2(a)(2)(B)(2004); see also 67 Fed. Reg. 49561 (July 31, 2002). 
CIS implemented the concurrent filing process as a convenience for aliens and their U.S. employers; 
CIS in no way suggested that an unadjudicated 1-140 could be the basis for 1-485 approval under the 
portability provisions of section 106(c). More significant to this matter, CIS did not suggest that 
allowing concurrent filing would make AC21, applicable when enacted only to the adjudication of 
the 1-485, relevant to the initial adjudication of the underlying 1-140. Prior to July 31, 2002, only 
immediate relatives and family-based preference cases could concurrently file a visa petition and an 
adjustment application. Accordingly, at the time that Congress enacted AC21, no alien could assert 
that an unadjudicated immigrant visa petition "shall remain valid" through the passage of 180 days, 
since the application for adjustment could not be filed until after the petition was approved by CIS. 
It is presumed that Congress is aware of INS regulations at the time it passes a law. See Goodyear 
Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988). 
Contrary to the ordinary meaning of the word, counsel's ultimate position would require the AAO to 
construe the term "valid" to include unadjudicated petitions. See Webster's New College Dictionary 
12 18 (2001) (defining "valid" as "well-grounded," "producing the desired results," or "legally sound 
and effective.") Since an approved petition was required to file an application for adjustment of 
status, it is extremely doubtful that Congress intended the term "valid" to include petitions that 
remain pending after the close of the 180-day period.' 
With regard to the overall design of the nation's immigration laws, section 204 of the Act provides 
the basic statutory framework for the granting of immigrant status. Section 204(a)(l)(F) of the Act, 
8 U.S.C. 5 1154(a)(l)(F), provides that "[alny employer desiring and intending to employ within the 
United States an alien entitled to classification under section . . . 1153(b)(l)(C) . . . of this title may 
file a petition with the Attorney General [now Secretary of Homeland Security] for such 
classification." (Emphasis added.) 
Section 204(b) of the Act, 8 U.S.C. 5 1154(b), governs CIS' authority to approve an immigrant visa 
petition and grant immigrant status: 
After an investigation of the facts in each case, and after consultation with the 
Secretary of Labor with respect to petitions to accord a status under section 
1153(b)(2) or 1153(b)(3) of this title, the Attorney General [now Secretary of 
Homeland Security] shall, if he determines that the facts stated in the petition are true 
and that the alien in behalf of whom the petition is made is . . . eligible for preference 
under subsection (a) or (b) of section 1153 of this title, approve the petition and 
forward one copy thereof to the Department of State. The Secretary of State shall 
then authorize the consular officer concerned to grant the preference status. 
Accordingly, pursuant to the statutory framework for the granting of immigrant status, any United 
States employer desiring and intending to employ an alien "entitled" to immigrant classification 
under the Act "may file" a petition for classification. Section 204(a)(l)(F) of the Act. However, 
section 204(b) of the Act mandates that CIS approve that petition only after investigating the facts in 
each case, determining that the facts stated in the petition are true and that the alien is eligible for the 
1 
 It is also noted that the Act contains at least one provision that does apply to pending petitions; in that 
instance, Congress specifically used the word "pending." See 9 101(a)(15)(V) of the Act, 8 U.S.C. 
1101(a)(15)(V) (establishing a nonimmigrant visa for aliens with family-based petitions that have been 
pending three years or more). 
requested classification, and consulting with the Secretary of Labor when required. Section 204(b) 
of the Act. Congress specifically granted CIS the sole authority to approve an immigrant visa 
petition; an alien may not adjust status or be granted immigrant status by the Department of State 
until CIS "approves" the petition. 
Therefore, to be considered "valid" in harmony with the thrust of the related provisions and with the 
statute as a whole, the petition must have been filed for an alien that is "entitled to the requested 
classification and that petition must have been "approved" by a CIS officer pursuant to his or her 
authority under the Act. See generally, Section 204 of the Act, 8 U.S.C. $ 1154. A petition is not 
made "valid" merely through the act of filing the petition with CIS or through the passage of 180 
days. To interpret this provision in any other manner would subvert the statutory scheme of the U.S. 
immigration laws. 
Considering the statute as a whole, it would severely undermine the immigration laws of the United 
States to find that a petition is "valid" when that petition was never approved or, even if it was 
approved, if it was filed on behalf of an alien that was never "entitled" to the requested visa 
classification. It would be irrational to believe that Congress intended to throw out the entire 
statutorily mandated scheme regulating immigrant visas whenever that scheme requires more than 
180 days to effectuate. It would also be absurd to suppose that Congress enacted a statute that would 
encourage large numbers of ineligible aliens to file immigrant visa petitions, if the legislation was 
actually meant to be an impetus for CIS to reduce its backlogs. We will not construe section 106(c) 
in a manner that would create a situation where ineligible aliens would gain a "valid" visa simply by 
filing fiivolous visa petitions and adjustment applications, thereby increasing CIS backlogs, in the 
hopes that the application might remain unadjudicated for 180 days. 
In the present matter, the petition was filed on behalf of an alien who was not "entitled" to the 
classification. Specifically, the petitioner did not submit the initial evidence required by the 
regulation at 8 C.F.R. 5 204.5(i)(3)(iii), a qualifjnng job offer. An alien must be eligible as of the 
date the petition is filed. See 8 C.F.R. $ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. 
Comm. 1971). Thus, a subsequent job offer from another employer is insufficient. To hold 
otherwise would allow aliens without a permanent job offer to establish a priority date in the hopes 
of securing a permanent job offer from another employer at some future date. An unapprovable 
petition should not become approvable under a new set of facts hinged upon probability and 
projections at the time of filing. Matter of Great Wall, 26 I&N Dec. 142, 145 (Reg. Comm. 1977). 
Section 106(c) of AC21 does not repeal or modify section 204(b) or section 245 of the Act, which 
require CIS to approve a petition prior to granting immigrant status or adjustment of status. 
Accordingly, as this petition was not approvable when filed, it cannot be deemed to have been 
"valid" for purposes of section 106(c) of AC2 1. 
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.