dismissed EB-1B Case: Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
3 
FILE: 
33 
LIN 04 062 5 1 145 Office: NEBRASKA SERVICE CENTER Date: I! ung 
M RE: Petitioner: 
Beneficiary 
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 1 153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
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. 
bbb&) bb3K 
aobert P. Wiernann, Director 
Administrative Appeals Office 
LIN 04 002 5 1 145 
Page 2 
DISCUSSION: The employment-based immigrant visapetition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a nonprofit research institute. It seeks to classify the beneficiary as an outstanding researcher 
pursuant to section 2030>)(1)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(B). 
According to the petition, 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, the petitioner submits additional evidence. We uphold the 
director's decision for the reasons discussed below. 
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) with a university 
or institution of higher education to teach in the academic area, 
(IT) 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. 4 204.5(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 offwing the alien a 
tenured or tenure-track teaching position in the alien's academic field; 
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(B) A United States university or institution of higher learning offwng 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 regulation at 8 C.F.R. 9 204.5(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 vetition. the ~etitioner indicated that the ~osition of researchassociate was mmanent. The 
2001 ." The also submitted evidence that the GeficiaG wasreappointed to this posit& on January 
20, 2001, March 20, 2002 and March 20, 2003. On November 30, 2004, the director requested a copy of the 
letter offering the beneficiary a position as a research associate, the job listed on the petition. In response, the 
petitioner submitted a May 14, 2003 letter offering the beneficiary an appointment as a research associate 
"effective June 1, 2003 through May 3 1,2004." The petitioner was reappointed to this position on June 1,2004 
for another twelve months. 
The petitioner also provided a letter fro staff member of the petitioning institute, 
asserting that the research associate it is "the policy of [the petitioner] to award 
annual contracts to all it's [sic] staff members that are renewable on a yearly basis based on mutual agreement of 
both parties." 
The director concluded that as of the date of filing, the petitimer had only offered the beneficiary a temporary 
research fellowship. 
On appeal, counsel asserts that the director both conceded that the position of research associate is permanent 
and found that the petitimer had not offered the beneficiary an indefinite position. Counsel asserts that the 
"manifest weight of the evidence presented by [the petitioner] plainly establishes that the position of Research 
Associate is for an indefinite or unlimited duration and that [the beneficiary] has an expectation of continued 
employment." In the alternative, counsel asserts tht the actual renewal of contracts gves the employees an 
expectat ion of continued employment. Counsel concludes: 
The [director's] rationale, if widely applied, would require all employers to grant lifetime 
appointments to outstanding researchers and other professional staff. As the [director] well 
knows, such a requirement is wholly unsupported by the statute and regulations. 
The petitioner submits a letter fro ief of Staff and Vice President of the petitioner's Board 
of Governors, who explains that th 1,400 other professionals, is worhng on a one-year 
LJN 04 002 5 1 145 
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renewable appointment. He explains that renewal is based on an annual professional review "and cames with it 
a reasonable expectation of continued employment, unless there is good cause for termination." He continues 
that all faculty and leadership at the petitioning foundation are subject to the same process, which is not 
intended to "appear to represent a limited or insecure employment relationship." 
In addition, the petitioner submits a letter from Dr. Director of Research for the petitioner. h. 
asserts that the research associate position "is the first level faculty position at the Cleveland Clinic 
to a Tenure Track Research Assistant Professor at most universities." 
The petitioner filed the petition on October 2, 2003. While the director focused on the beneficiary' s twelve- 
month appointment as a research fellow as of April i, 2003, the response to the director's request for 
additional documentation reflects that the beneficiary was then promoted to a research associate on May 14, 
2003, prior to the petition's date of filing. As such, we can consider the research associate job offer. 
Counsel is not persuasive, however, that the research associate job is permanent as defined in the relevant 
regulation, quoted above. First, the director's decision is not inconsistent. The director achowledges that 
the research position itself is continuing but concludes the beneficiary's appointment to that position is not. 
We concur. 
The petitioner's policy of issuing term contracts to a11 of its employees does not require the director to waive 
the permanent job offer requirement set forth in both the statute and the regulations as quoted above. The 
regulations do not require tenure or a "lifetime" appointment as counsel implies. Rather, it requires a 
position that is either tenure-track or can only be terminated for cause. If the petitioner does not offer tenure, 
and the insistence that the petitioner only issues annual contracts suggests it does not, we cannot conclude 
that the beneficiary's position is "tenure-track." While &.implies that the petitioner will only fail to 
renew the beneficiary's contract for cause, the original offer of employment for the research associate 
position does not indicate that non-reappointment can only be for cause. Rather, the May 14, 2003 letter 
includes a specific termination date. The reappointment letters reveal that the annual reviews are not merely 
performance evaluations where the employee presumes reappointment unless otherwise advised. 
Regarding counsel's alternative assertion, while the beneficiary may have had an expectation of continued 
employment based on previous reappointments, the use of the word "and" in the regulation at 8 C.F.R. 
5 204(i)(2) indicates that such an expectation is required in addition to an offer for a job with a term of 
indefinite or unlimited duration. The May 14,2003 job offer is unambiguously for a one-year tenn subject to 
renewal. The petitioner did not provide the beneficiary's contract indicating that renewal is automatic unless 
there is cause to terminate the employment relationship. 
In light of the above, the petitioner has not estabIished that the job offer was for a position with indefinite or 
unlimited duration. The lack of a permanent job offer from the petitioner to the beneficiary is sufficient 
grounds for denial. 
Finally, we do not contest the petitioner's prestige and distinguished reputation or its sincerity in wishing to 
employ the beneficiary. As an adjudicatory body, however, we are bound by the statute and the regulations. 
Whether or not the statute and regulations are conducive to the petitioner's personnel policies is not a 
consideration for us. We note that this decision is without prejudice to a new petition filed under a different 
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classification that does not require a permanent job offer as defined in the regulation set forth at 8C.F.R. 
5 204.5(i)(2). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitimer has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.