dismissed EB-1B Case: Research

PUBLIC COPY 
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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: CALIFORNIA SERVICE CENTER Date: SEP 1 5 2005 
WAC 04 138 54306 
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. 
U f& Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and 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. 4 1153(b)(l)(B). 
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) withln a university or 
institution of higher 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 
(HI) 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. 9 204.5(i)(l) provides: 
Any United States ernployer 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 mayfile an 1-140 visa 
petition for such classification. 
(Emphasis added.) The regulation at 8 C.F.R. fj 204.5(1)(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. 
While the director noted that a petition under this classification must be accompanied by a job offer, the director 
denied the petition because the petition was improperly filed by the alien seelung classification as an 
outstanding researcher instead of by an employer. 
On appeal, the petitioner submits a job offer letter dated July 20, 2005. A petitioner must demonstrate eligbility 
at the time of filing. 8 C.F.R. 9 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg. Cornrn. 1971). The 
letter submitted on appeal is not evidence that the job offer was available at the time the petition was initially 
filed. Regardless, a job offer cannot overcome the fact that the petition was not properly filed by an employer as 
required. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 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.