dismissed EB-1B Case: Physiology

PUBLllC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
EAC 06 062 50123 
PETITION: 
 Imrmgrant 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) 
ON BEHALF OF PETITIONER: 
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. 
-?+= 
fbobert 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 (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a public institution of higher learning. It seeks to classify the beneficiary as an 
outstanding researcher pursuant to section 203@)(1)(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 research instructor / staff 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, counsel submits a brief and additional evidence. For the reasons discussed below, counsel's 
assertions regarding the required initial evidence in ths matter are not persuasive and we cannot 
consider the evidence now submitted for the first time on appeal. 
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 
(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 hgher 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 
(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. 5 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An ofer 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 ofleering 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 111- 
time in research positions, and that it has acheved documented 
accomplishments in an academic field. 
(Emphasis added.) On appeal, counsel notes that the regulation requires "[aln offer" and says "[tlhe 
offer" shall be in the form of "a letter." Counsel then concludes that the lack of the word "actual" 
and the use of the phrases: "[aln offer" and "a letter" rather than: "the offer" and "the letter" requires 
only that an offer exist at the time of filing which can be demonstrated through the submission of 
evidence other than the actual job offer itself. Counsel then quotes from the June 6, 2006 Interoffice 
Memorandum fi-om Michael Aytes, Acting Director for Domestic Operations, Citizenship and 
Immigration Services (CIS). Specifically, counsel asserts that Mr. Aytes states that the "offer of 
employment may be in the form of a letter from the petitioning employer." (Emphasis added.) 
Where the regulation requires a specific document such as "[aln offer of employment," we do not find 
that the lack of the phrase "the actual offer of employment" suggests that anything other than the offer 
itself would suffice. The regulation at 8 C.F.R. fj 103.2(b)(2) provides that the unavailability of 
evidence creates a presumption of ineligibility and that the petitioner must demonstrate that the 
evidence is either unavailable or does not exist prior to relying on secondary evidence. The petitioner 
did not present any evidence to the director indicating that the initial job offer was either unavailable or 
did not exist. Thus, the director was justified in finding that the petitioner had failed to submit the 
required initial evidence, a qualifying job offer. 
Moreover, the sentence from the memorandum by Mr. Aytes quoted by counsel appears on page four of 
the memorandum. The same sentence appears on page two of the memorandum without the word 
"may." The AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N L. R. B. v. Ashkenazy Property Management Corp., 8 1 7 F.2d 74, 75 (9th Cir. 1 987)(administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), afd 273 F.3d 874 (9th Cir. 
2001)(unpublished agency decisions and agency legal memoranda are not binding under the APA, 
even when they are published in private publications or widely circulated). Even CIS internal 
memoranda do not establish judicially enforceable rights. See Loa-Herrera v. Trominski, 23 1 F.3d 
984, 989 (5th Cir. 2000)(An agency's internal guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely.") The regulation at 8 C.F.R. 
5 204.5(i)(3)(iii) expressly states that the offer of employment "shaN be in the form of a letter" from 
a qualifying employer. The language on page 4 of the memorandum by Mr. Aytes cannot supercede 
the plain and unambiguous language in the regulation. 
Black's Law Dictionary 11 11 (7th ed. 1999) defines "offer7'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: 
Permanent, in reference to a research position, means either tenured, tenure track, or for 
a term of indefinite or unlimited duration, and in whch 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 indicate 
 d employment was a permanent 
position. The petitioner submitted two letters fio 
 , a professor of physiology at the 
petitioning institution addressed to Citizenship and Immigration Services (CIS), asserting that the 
petitioner had offered the beneficiary a position as an instructor and staff scientist. These documents do 
not constitute a job offer from the petitioner to the beneficiary. On October 27, 2006, the director 
Page 5 
requested evidence that the petitioner had extended a permanent job offer to the beneficiary. The 
director explicitly stated: "The document now requested is the actual offer of a permanent research 
position issued by the university to the alien." 
In response, the petitioner submitted a November 7, 2006 letter from fl the 
petitioner's Immigration Coordinator, Human Resources, addressed to the beneficiary advising that his 
position "is for an indefinite or unlimited duration." This letter postdates the filing of the petition. 
The director concluded that the petitioner had failed to submit the required initial evidence, a job offer 
that predates the filing of the petition. 
On appeal, the petitioner submits a November 22, 2002 letter advising the beneficiary of his 
appointment as instructor. Where, as here, a petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept 
evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 
1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). If the petitioner had 
wanted the submitted evidence to be considered, it should have submitted the documents in response 
to the director's request for evidence. Id. Under the circumstances, the AAO need not and does not 
consider the sufficiency of the evidence submitted on appeal. 
Considering the record before the director, the petitioner had not submitted the primary required initial 
evidence, the original job offer predating the filing date of the petition. Confirmations after the fact are 
not evidence of eligibility as of the date of filing. See generally 8 C.F.R. 5 103.2@)(12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg. Comrn. 1971). The petitioner had not complied with the 
regulation at 8 C.F.R. 8 103.2@)(2) regarding the submission of secondary evidence. Specifically, the 
petitioner had not demonstrated that the original job offer did not exist or was unavailable. While we 
do not question the credibility of those who have confirmed the beneficiary's employment, counsel has 
not sufficiently explained why the director should have accepted attestations about the terms and 
conditions in a document in lieu of the document itself. Without the initial job offer, the director was 
not obligated to consider the petitioner's explanations about the terms and conditions set forth in that 
job offer. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 136 1. 
 The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.