remanded EB-1B Case: Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm A3342 
Washtngton, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: m Office: NEBRASKA SERVICE CENTER Date: 
LIN 04 049 5 00 1 1 4% : 8 20u5 
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. fj 1 153(b)(l)(lB) 
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. 
wobert P. ~iernas~irector 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner is a postsecondary educational institution. It seeks to classify the beneficiary as an ou1:standing 
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). The petitioner seeks to employ the beneficiary in the United States as a research a.ssociate. 
The director determined that the petitioner had not established that it had offered the beneficiary a pt:rmanent 
job as of the date of filing. 
On appeal, counsel submits a brief and 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, 
(11) 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)(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 petition, the petitioner osed employment was a permanent posi1:ion. The 
petitioner submitted a cover letter from dressed to the director asserting that the petitioner 
"wishes to continue to employ [the beneficiary] as a Research Associate in Chemistry." On February 26,2004, - -- 
the director requested evidence that the petitioner had offered the beneficiary a permanent job. Specifically, the 
director requested a contract between the petitioner and beneficiary, official guidelines reflecting; that the 
beneficiary's position is a permanent position at the petitioning university, or documentation reflectirig that an 
exception has been made for the beneficiary to make the beneficiary's job permanent as defined in the 
regulations. 
In response, the petitioner submitted a new letter from ffirming that the beneficiary has been 
worlung full-time and a letter addressed to the director from epartment Chairnian of the 
Department of Chemistry at the petitioning university, affirming that the beneficiary's position is a permanent - - - 
poiition with "no fixeddterm." knoldwledges that, as with tenure positions, the beneficiary's 
position is contingent on the availability of funds. 
The director concluded tha-etter was insufficient because it was addressed to the director and 
acknowledged that the beneficiary's position was contingent on available funding. The director also noted the 
limited sal& offered to the beneficiary according to the ;rigma1 petition. 
On appeal, counsel asserts that the beneficiary's position has been funded for the past 15 years and that the 
beneficiary's salary is not a valid consideration. The petitioner submits a September 2, 2004 letter from Dr. 
Rinaldi to the beneficiary confirming "our job offer to you for the permanent full-time position of Research 
Associate." The letter also confirms "the expectation of [the beneficiary's] continued employment contingent 
on continued availability of hnding, as with all permanent positions with the University." 
The record now contains a job offer issued to the beneficiary; however, it is dated after the petition was filed 
and cannot establish the beneficiary's eligbility as of that date. We do acknowledge that the petitioner is 
asserting that the beneficiary was worlung in a permanent position at the time of filing. The petitioner, however, 
failed to submit the contract for that position, as requested. 
While the petitioner failed to submit the requested contract and university official policy confirming that the 
position of research associate is a permanent position as defined in the relevant regulations, as opposed to the 
university's definition, the record did not contain any inconsistencies regarding the nature of job offer at the 
time the director issued his decision. Our review of the petitioner's website,' however, raises additional 
concerns. Rul- the petitioner's Administrative Code reflects that the rank of instructor "is 
composed of full-time non-tenure track faculty." While "auxiliary faculty" includes "research appointments" 
under the same rule, auxiliary facul a ears to be a subset of the instructor rank, given the broad definition of 
that rank quoted above. Rule-oides that instructors "and those not on indefinite tenure shall 
receive annual notices of reappointment if their continued service is desired." The next subparagraph of that 
rule provides that instructors "and fixed term faculty shall be subject to annual appointment." 
These rules have now been added to the record of proceedings. Therefore, this matter will be remanded for the 
director to provide the petitioner an opportunity to respond to these rules, which appear inconsistent with the 
I 
We accessed www.uakron.edu/ogc/rules on August 8, 2005, where we were able to search and download 
the petitioner's administrative iules. 
Page 4 
representations in the letters quoted above. We note that it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconlzile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.