remanded EB-1B Case: Academia

identifying dzta deleted to 
preve:lt c!eariy irnwarranted 
invasion of person?.\ privacy 
PWLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
MAIL STOP 2090 
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. 6 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
r~obert P. WieL, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the ernployment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
withdraw the director's decision; however, because the petition is not approvable, it is remanded for 
fiuther action and consideration. 
The petitioner is a state university. It seeks to classifjr 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. 
8 1 153(b)(l)(B). According to the petition, the petitioner seeks to employ the beneficiary in the United 
States as an assistant professor. 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 a statement and a June 6, 2006 Interoffice Memorandum from 
Michael Aytes, Acting Director for Domestic Operations, Citizenship and Immigration Services (CIS). 
For the reasons discussed below, the petitioner has established that the position offered, while not a 
tenured position, is a tenure-track teaching position, which, by statute, is a qualifjing position. The 
record, however, does not establish at this time that the beneficiary has the necessary three years of 
experience or that he is internationally recognized as outstanding. Thus, the matter will be remanded to 
the director for a resolution of these issues. 
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, 
(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 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 fiom: 
(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 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. 
(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 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 o#er within the 
ordinary meaning of that phrase. 
On Part 6 of the petition, the petitioner indicated that the proposed employment was a permanent 
position. The petitioner submitted a letter from - addressed to CIS, asserting that the 
petitioner had been offered a tenure-track position. This document does not constitute a job offer from 
the petitioner to the beneficiary. On March 10,2008, the director requested evidence that the petitioner 
had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted a June 21, 2006 letter addressed to the beneficiary offering him a 
position as an Assistant Professor. The second paragraph of this letter states that the appointment "is 
without tenure." The letter further advises, however, that the internal handbook entitled "Information 
for New Tenured and Tenure-Track Faculty Members" is enclosed. The petitioner also submitted 
Chapter 3 of its Handbook of Operating Procedures. Section 3.1 5 provides that full-time service as an 
assistant professor "shall be counted toward fulfillment of a required probationary period related to the 
acquisition of tenure." Subparagraph 2 of this section provides that no later than an assistant 
professor's sixth year of full-time service, the department shall recommend to the administration that 
the assistant professor be promoted to associate professor with tenure or placed on terminal 
appointment. Thus, it is very clear that the assistant professor rank at the petitioning university is a 
tenure-track teaching appointment. 
The director noted the language in the second paragraph of the job offer advising that the position was 
not a tenured position and concluded that the job was not qualifymg. The director did not consider 
whether the position was a tenure-track teaching position. 
Section 203(b)(l)(B)(iii)(A) of the Act expressly states that a teaching job offered by a university 
may be either tenured or tenure-track. We are satisfied that the petitioner has offered the beneficiary 
a qualikng tenure-track teaching position. Thus, we withdraw the director's adverse findings on 
this issue. 
Nevertheless, the petition is not approvable. First, the petitioner is offering the beneficiary a teaching 
position. The regulation at 8 C.F.R. 8 204.5(i)(3) states that a petition for an outstanding professor or 
researcher must be accompanied by: 
(ii) Evidence that the alien has at least three years of experience in teaching and/or 
research in the academic field. Experience in teaching or research while working on an 
advanced degree will only be acceptable if the alien has acquired the degree, and if the 
teaching duties were such that he or she had full responsibility for the class taught or if 
the research conducted toward the degree has been recognized within the academic field 
as outstanding. Evidence of teaching andlor research experience shall be in the form of 
letter(s) fiom former or current employer(s) and shall include the name, address, and 
title of the writer, and a specific description of the duties performed by the alien. 
The record contains a letter from 
 at the beneficiary was a teaching 
assistant from August 16,1999 through June 30,2002. 
 does not, however, advise that the 
Page 5 
beneficiary had full responsibility for the class taught. mle the record also attests to the beneficiary's 
work as a research assistant, the director should consider whether that research has been recognized 
within the academic field as outstanding. 
Second, the regulation at 8 C.F.R. 5 204.5(i)(3)(i) states that a petition for an outstanding professor or 
researcher must be accompanied by "[elvidence that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the petition." The regulation lists six 
criteria, of which the beneficiary must satisfy at least two. Outstanding professors and researchers 
should stand apart in the academic community through eminence and distinction based on 
international recognition. The regulation at issue provides criteria to be used in evaluating whether a 
professor or researcher is deemed outstanding. Employment-Based Immigrants, 56 Fed. Reg. 30703, 
30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 1991)). Thus, in evaluating 
the evidence submitted to meet a given criterion, the director shall consider that the controlling purpose 
of the regulation is to establish international recognition, and any evidence submitted to meet these 
criteria must therefore be to some extent indicative of international recognition. 
In considering whether the petitioner has established that the beneficiary is internationally recognized 
as outstanding through meeting at least two of the regulatory criteria at 8 C.F.R. 5 204.5(i)(3)(i), the 
director shall take into account the following: 
1. Whether awards limited to students are "major" prizes or awards pursuant to the regulation at 8 
C.F.R. 8 204.5(i)(3)(i)(A). 
2. Whether brief citations of the beneficiary's articles in other research articles that primarily 
report the authors' own findings constitute published materials about the beneficiary's work 
pursuant to the regulation at 8 C.F.R. $204,5(i)(3)(i)(C). 
3. Whether participation in the peer review process undertaken by every peer-reviewed journal is 
indicative of or consistent with international recognition as outstanding pursuant to the 
regulation at 8 C.F.R. 5 204.5(i)(3)(i)(D). The director should not ignore that scientific 
journals are peer reviewed and rely on many scientists to review submitted articles. The 
director shall also consider whether the record establishes the significance of being asked to 
serve as an external reviewer of the contributions of a nominee for a Dean's Award. 
Specifically, the director may wish to inquire as to the number of external reviewers and the 
identity of the individual who recommended the beneficiary for this purpose. 
4. Whether the petitioner has established the significance of the beneficiary's contributions 
pursuant to the regulation at 8 C.F.R. 
 204.5(i)(3)(i)(E). The director shall take into account 
that all published research must be "original" in that it does not duplicate the work of others but 
it would render the criterion at 8 C.F.R. 5 204.5(i)(3)(i)(E) meaningless if all published work 
were considered sufficient to meet this criterion. Moreover, the director must take into account 
that the regulation at 8 C.F.R. 8 204.5(i)(3)(i)(F) relates to the publication of scholarly articles. 
As the classification sought only requires evidence that an alien meet two criteria, the mere act 
of publication, something inherent to the field of research and academia, should not be 
considered evidence that an alien meets the criteria set forth at 8 C.F.R. $204.5(i)(3)(i)(E) and 
(F). To hold otherwise would have the untenable result of finding every published Ph.D. 
student eligible. 
5. Whether the international response to the beneficiary's articles, no more than four independent 
citations of any one article by the beneficiary, is indicative of or consistent with international 
recognition as outstanding. 
Therefore, this matter will be remanded for further action in accordance with the above. As always in 
these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. 
ORDER: 
 The director's decision is withdrawn; however, the petition is currently unapprovable 
for the reasons discussed above, and therefore the AAO may not approve the petition at 
this time. Because the petition is not approvable, the petition is remanded to the 
director for issuance of a new, detailed decision which, if adverse to the petitioner, is to 
be certified to the Administrative Appeals Office for review.