dismissed EB-1B Case: Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
KO 
FILE: LIN 05 276 52721 Office: NEBRASKA SERVICE CENTER Date: JUN 2 7 2006 
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. § 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. 
V 
hobert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 276 52721 
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 seeks to classify himself as an outstanding researcher pursuant to section 203(b)(l)(B) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 153(b)(l)(B). The director determined that 
the petitioner self-petitioned in a classification that requires a U.S. employer petitioner. 
On appeal, counsel asserts that the director's decision is in error because it fails to take into account the 
petitioner's nonimmigrant status and was issued without first issuing a request for additional evidence. 
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. fj 204.5(i)(l) provides: 
LIN 05 276 52721 
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Any United States employer desiring and intending to employ a professor or researcher 
who is outstanding in an academic field under section 203(b)(l)(B) of the Act mayJile 
an 1-1 40 visa petition for such classification. 
(Emphasis added.) 8 C.F.R. fj 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. 
The director denied the petition for lack of a job offer and because the petition was filed by the alien 
seeking classification as an outstanding researcher instead of by an employer. 
On appeal, counsel asserts that the director failed to take into account that the petitioner has 
nonimmigrant status. Counsel further asserts that the director should have issued a request for 
additional evidence "to clarify whether he had a petitioning employer." Finally, counsel asserts that the 
petitioner is eligible for classification as an outstanding researcher. 
Counsel is not persuasive. First, counsel does not explain how the petitioner's nonirnrnigrant status is 
relevant. For example, counsel cites no legal authority allowing nonimmigrants to self-petition as 
outstanding researchers and we know of no such authority. Second, the regulation at 8 C.F.R. 
5 103.2(b)(8) provides that if "there is evidence of ineligibility in the record, an application or petition 
shall be denied on that basis notwithstanding any lack of required initial evidence." The petitioner was 
not eligible to self-petition in the classification sought. Counsel does not explain how the petitioner 
could have remedied the lack of a U.S. employer petitioner in response to a request for additional 
evidence. Specifically, counsel cites no legal authority, and we know of none, that allows for amending 
the petitioner of a petition after it has already been filed. Finally, we need not reach the issue of 
whether the petitioner qualifies for the classification sought as the petitioner self-petitioned in a 
classification that requires a U.S. employer petitioner. 
LIN 05 276 52721 
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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. This denial is without prejudice to the filing of a new petition by a United States employer. 
ORDER: The appeal is dismissed.