remanded EB-1B Case: Biomedical Engineering

(b)(6)
Date: NAR 2 6 20130ffice: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachuseus Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Pe.tition 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: 
SELF-REPRESENTED . 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. Please note that all documents have 
been returned to the office that originally decided your case . Please . also note that any further inquiry must 
be made to that office. 
If you b~lieve the law was inappropriately applied by _us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing su~h a request can be found at 8 C.F.R. § 103.5. All motions must he 
submitted to the office that originally decided your case. by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must he 
filed within 30 days of the decision that the motion se.eks to reconsider or reopen. 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas Sei"Vice Center, denied the employment-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 at this time, 1 it is 
remanded for further action and consideration. · 
The petitioner is a university. It seeks to classify the beneficiary as an outstanding professor or 
researcher pursuant to section 203(b)(l)(B) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(t)(B). The petitioner seeks to employ the beneficiary permanently in the United States as an 
assistant professor. The director determined the petitioner had not established that it had offered the 
beneficiary a permanent job as of the date of filing. · · 
The petitioner submits a brief and additional documentary 
evidence in support of the appeal. 
THE LAW 
Section 203(b) of the Act states, in pertinent .part, that: 
(1) Priority workers. -- Vis~s 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 m 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 
(ill) for a compar(!.ble position to conduct research in the area 
with a department, division, or institute of a private employer, if 
1 The director denied the petition on the basis of a single issue. 
(b)(6)Page 3 
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. § 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 offedng the alien 
a permanent research position in the alien'sacademic 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 1189 (91h ed. 2009) 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" and defines "offeree" as "[ o ]ne to 
whom an offer is made." Iri addition, Black's Law Dictionary defines "offeror" as "[o]ne who makes 
an offer." Id at 1190. 
In light of the above, the ordinary meaning of an "offer" requires that it be made to the otferee, 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 United States Citizenship and Immigration Services 
(USCIS) affirming the beneficiary's employment is not a job offer within the ordinary meaning of that 
phrase. 
The regulation at 8 C.F.R. § 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. 
(b)(6)
Page 4 
DISCUSSION 
The 
director denied the petition, finding the petitioner failed to establish that it had offered the 
beneficiary a permanent job. On Part 6 of the petition, the petitioner indicated that the proposed 
employment was a permanent position. 
Initially, the petitioner submitted a support letter dated October 25, 2012 addressed to USCIS, referring 
to a June 28, 2010 job letter relating to the beneficiary's previous nonimmigrant visa petition. The job 
letter, from Chair of the petitioner's Department of Biomedical Engineering, states that 
the petitioner "requires the temporary services of [the beneficiary] to work as an Assistant Professor in 
the Department of Biomedical Engineering." The letter states the petitioner is offering the beneficiary 
employment "on a full-time basis for a three-year period. He will be compensated at the rate of 
$74,000 per year." 
In response to the director's request for additional evidence (RFE) dated November 16, 2012, t~e 
petitioner submitted a letter dated November 27, 2012 from officials at the petitioning university 
addressed to USCIS stating "This lett~r explains the nature of the terms of the employment and 
confirms the position is a tenure track position.;' The letter further states: 
. [The petitioner] requires the full-time services of [the beneficiary] to work as an 
Assistant Professor of Biomedical Engineering in the School of Engineering . . . 
conducting research in biomechanics and rehabilitation engineering ; developing the 
curriculum for and teaching 4 courses annually in biomedical engineering at the 
undergraduate and graduate level; and performing administrative duties .. 
On appeal, the petitioner now submits the original job offer, dated May 17, 2010? The original job 
offer states as follows: 
The initial appointment is understood to be probationary as defined in the faculty 
handbook, which is distinct from appointments that carry continuous tenure .. . The 
decision on tenure for a faculty member at [the petitioning institution] is normally 
considered in the sixth year of the seven-year probationary period. However, the 
faculty member can initiate tenure application at any time during the probationary 
period ... 
The petitioner also submitted relevant pages from its · faculty handbook advising: "An appointment 
probationary for tenure is an appointment to a Faculty for a term of one or two years, and is subject to 
renewal up to a maximum of seven years of service ... unless a new letter of appointment is issued 
prior to such terminal date." Thus, it does not appear that the petitioner 's policies bar the 
2 Although the petitioner asserts it submitted the original job offer in response to the director's RFE, the record does not 
support the petitioner's assertion . 
(b)(6)
Page 5 
reappointment of an Assistant Professor in that position beyond seven years. The original job offer 
letter does not include any terms implying that the job is other than pennanent. 
Given that the petitioner may renew term appointments indefinitely we find that the original job 
letter, when read in conjunction with the affirmations from the .. petitioner that the job is permanent, 
·overcomes the · director's basis for denial. We are satisfied that the petitioner had offered the 
beneficiary a "permanent" position as defined at 8 C.F.R. § 204:5(i)(2) as of the date of filing the 
petition. See 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
In light of the above, we withdraw the director's determination that the petitioner had not offered the 
beneficiary a qualifying job as of the date of filing. Therefore, this matter will be remanded for 
consideration of whether the petitioner has established that Ute beneficiary enjoys international 
recognition as outstanding. 
International Recognition 
The regulation at 8 C.F.R. § 204.S(i)(3)(i) states that a petition for an outstanding professor or 
researcher must be accompanied by "[e]vidence that the professor or researcher is recognized 
internationally as outstanding in the academic field specified in the petition." The regulation lists the 
following six 
criteria, of which the beneficiary must submit evidence qualifying under at least two. 
(A) Documentation of the alien's receipt of major prizes or awards for outstanding 
achievement in the. academic field; 
(B) Documentation of the alien's membership in associations in the academic field 
which require outstanding achievements of their members; · 
(C) Published material in professional publications written by others about the alien's 
work in the academic field. Such material shall include the 
title, date, and author of the 
material, and any necessary translation; 
(I)) Evidence of the alien's participation, either individually or on a panel, as the judge 
of the work of others in the same or an allied academic field; 
I 
(E) Evidence of the alien's original scientific or scholarly research contributions to the 
academic field; or 
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly 
journals with international circulation) in the academic field. 
;· 
(b)(6)
Page 6 
In 2010, the U.S .. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under a similar classification set forth at section 203(b)(1)(A) of the Act. Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given 
evidentiary criterion. With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court 
concluded that while U.S. Citizenship and Immigration Services (USCIS) may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulati~ms.:' 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and ''that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
8 
C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. § 1153(b)(1)(A)(i). 
/d. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination.4 While involving a different classification than the one at 
issue in this matter, the similarity of the two classifications makes the court's reasoning persuasive to 
the classification sought in this matter. 
In evaluating the evidence submitted under the criteria at 8 C.F.R. § 204.5(i)(3)(i) the director shall take 
into account the following: 
3 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv)(comparable to 8 C.F.R. § 204.5(i)(3)(i)(D)) and 8 
C.F.R. § 204.5(h)(3)(vi) (comparable to 8 C.F.R. § 204.5(i)(3)(i)(F)). 
4 
The classification at issue in Kazarian, section 203(b)(l)(A) of the Act, requires qualifying evidence under three criteria 
whereas the classification at issue in this matter, section 203(b )(1 )(B) of the Act, requires qualifying evidence under only 
two criteria. 
(b)(6)
Page 7 
1. Accepting that the beneficiary's peer review constitutes judging the work of others pursuant to 
8 C.F.R. § 204.5(i)(3)(i)(D), the director must determine, a5 part of a final merits determination, 
whether the beneficiary's review of manuscripts as part of the widespread peer review process 
is indicative.of or consistent with international recognition as outstanding. 
2. The director shall determine whether the beneficiary's original research constitutes a 
contribution to the field of biomedical engineering as a whole pursuant to 8 C.F.R. 
§ 204.5(i)(3)(i)(E). 
3. Accepting that the beneficiary has authored published articles, the director must determine, as 
part of a final merits determination, whether the beneficiary's publication record is indicative of 
or consistent with international recognition as outstanding. 
The director must take into account 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 indi~tive of international recognition. More specifically, 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-Bas~d Immigrants, 56 Fed. 
Reg. 30703, 30705 (proposed July 5, 1991) (enacted 56 Fed. Reg. 60897 (Nov. 29, 199'1)). 
In reviewing the evidence under the final merits determination, the director must take into account 
the nature of the beneficiary's judging experience as a relevant consideration as to whether the 
evidence is indicative of the beneficiary's recognition beyond his own circle of collaborators. See 
Kazarian, 596 F. 3d at 1122. 
Also in the final merits determination, the· director shall take into account information from the 
Department of Labor's Occupational Outlook Handbook (OOH), (accessed at www.bls.gov/oco on 
February 24, 2011 and incorporated into the record of proceedings). The OOH provides information 
about the nature of employment as a postsecondary teacher (professor) and the requirements for such a 
position. See www.bls.gov/oco/ocos066.htm. The handbook expressly states that faculty members are 
pressured to perform research and publish their work and that the professor's research record is a 
consideration for tenure. Moreover, the doctoral programs training students for faculty positions 
require a dissertation, or written report on original research. /d. Furthermore, the _beneficiary's citation 
. history is a relevant consideration as to whether the evidence is indicative of the beneficiary's 
recognition beyond his own circle of collaborators. See Kazarian, 596 F. 3d at 1122_. 
Finally, we note that the petitioner must establish the beneficiary's eligibility as of the priority date. See 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971); see 
also Matter of lzummi, 22 I&N Dec. 169, 175-76 (Comm'r~ 1998) citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot "consider facts that come into being 
only subsequent to the filing of a petition." 
i 
r 
i . 
(b)(6)
.... 
. Page 8 
If the director finds that the petition is not approvable, the director must issue a new denial notice, 
containing specific findings that will afford the ·petitioner the opportunity to address the director's 
ground(s) for denial. As always in these proceedings, the burden of proof rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 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 sustain the appeal. 
Because the petition is not approvable, the petition is remanded to the director for 
issuance of a new decision which, if adverse to the petitioner, is to be certified to the 
AAO for review. 
j 
~ ·.