remanded EB-1B Case: Engineering

-dafadeleBedto 
prevent clearly unwarran" 
Indon of personal privam 
mwccom )._ 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 03 133 53450 Office: NEBRASKA SERVICE CENTER Date: 2 6 2805 
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. tj 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administratwe Appeals Office in your case. All documents have been returned to 
cided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
1 
Li 
LIN 03 133 53450 
Page 2 
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. While the appeal does not succeed on 
its merits, we withdraw the director's decision and remand the matter for the sole purpose of affording the 
petitioner an opportunity to respond to derogatory information publicly available on the petitioner's own 
website accessed by this office. 
The petitioner is a research and education institution. It seeks to classi& 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. 
9 1153(b)(l)(B). According to the petition, the petitioner seeks to employ the beneficiary permanently 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. 
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 
(IU) 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)(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: 
LIN 03 133 53450 
Page 3 
(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 leaming 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 academio field. 
The regulation at 8 C.F.R. 5 204.5(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 indicated that the proposed employment was a permanent position. The 
petitioner submitted a letter fro f the Nondestructive Evaluation Laboratory to 
Citizenship and Immigration Services (CIS), asserting that the job set forth on the petition was still being offered 
to the beneficiary. This document does not constitute a job-offer from the to the beneficiary. On 
November 12, 2003, the director requested evidence that the petitioner had extended a permanent job offer to 
the beneficiary, including any employment contract and the orignal job offer letter. 
In response, the petitioner submitted the position description for the Research Associate 1-Engineer. The 
petitioner highlighted that the position was full-time and regular. The petitioner failed to highlight the notation 
that the position appointment length is "12112 Months." The "Title Group" of the position is "unclassified." 
The petitioner also submitted a letter from 
b 
uman Resources Professional, addressed to 
Citizenship and Immigration Services. She confirms that the eneficiary is employed as a Research Associate 1- 
Engineer, which she characterizes as "permanent." Subsequently, however, she states that "most regular 
research positions at [the petitioning institution] are approved on an annually renewable basis." She continues 
that renewal "each year is contingent upon satisfactory performance of duties and availability of research 
funds." She concludes that the beneficiary's appointment "will be renewed indefinitely on an annual basis." 
The petitioner also submits "Guidelines for Permanent Residency Sponsorship." The guidelines provide that 
"the department must be prepared to write a letter of offer stating that the employment is indefinite (i.e. 
permanent) ." 
The director stated that the petitioner had not submitted a copy of an employment offer made by the petitioner to 
the beneficiary and concluded that the petitioner had not met the regulatory evidentiary requirement of 
submitting a letter offering the beneficiary a permanent research position in his academic field. 
On appeal, the petitioner submits a letter from epartment of 
Industrial Welding and Systems Engneering dated May 20, 2004, more than a the petition was filed. 
LIN 03 133 53450 
Page 4 
urports to offer the beneficiary a position that was orally offered to and acce ted b the beneficiary 
on June 1,2002.asserts the previous offer "was never reduced to writing. ~ontinues that 
the offer "is of indefinite or unlimited duration in which you should expect continued employment unless there 
is good cause for termination in accordance with Ohio laws." 
We find that the director's decision could be upheld. While requested by the director, the petitioner failed to 
submit the beneficiary's contract. As there is no evidence that the petitioner has offered the beneficiary a 
position other than the one he already occupies, that contract is material evidence that has been requested and 
not submitted. The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 
$9 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). 
Moreover, the use of general words like "permanent" and "indefinite" are not determinative when contradicted 
by the specific terms of emplo ent sometimes in the same letter. We concur with the director that the specific 
employment terms set forth i-ttn; however characterized by her, represent a limited term 
of employment renewable at the option of the petitioner. In addition, the term of the petitioner's position, as 
indicated on the job listing submitted, is "12112 Months." It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The record does not resolve the 
inconsistencies between the character 
and the limited term of the beneficiary 
demonstrated in the record, including i 
In addition, the evidence submitted on appeal is not persuasive. First, we agree with the director that the 
regulations require an offer of employment from the petitioner to the beneficiary setting forth the title, terms 
and conditions of the position offered. A letter addressed to the beneficiary after the date of filing cannot 
demonstrate eligibility as of that date. See 8 C.F.R. $ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg. Cornrn. 1971). 
Further, the letter submitted on appeal is contradicted by the petitioner's own policies as reflected on its website. 
However, the petitioner, while it should be aware of its own publicly available policies, has not been afforded an 
opportunity to respond to our concerns regarding its policies, which we have now made part of the record. 
Thus, we withdraw the director's decision and remand the matter to the director for the sole purpose of 
affording the petitioner an opportunity to respond to the following information obtained from its website. The 
director should enclose copies of the information, summarized as follows: 
1. According to Rule 4.20 of the petitioner's appointment policy, "offers of employment should be 
confirmed in writing and signed by the authorized administrator." The petitioner's website includes 
sample confirmation letters of telephone job offers, suggesting that the petitioning institution does 
not condone purely oral job offers confirmed in writing years after they were made. 
2. Rule 4.20(1) of the petitioner's Appointments Policy provides: "Regular, unclassified appointments 
are at will." "Employment at will" is defined as "Employment that is usu. undertaken without a 
LIN 03 133 53450 
Page 5 
contract and that may be terminated at any time, by either the employer or the employee, without 
cause." Black's Law Dictionary 545 (7th ed. 2001). 
3. The petitioner's website, "Letters of Offer for Unclassified Staff' provides that job offer letters are 
required to state that the petitioner "is required by federal law to verify the identity and work 
authorization of all new employees. Accordingly, this offer is contingent upon such verification." 
This language does not appearqetter. The same page provides: 
Language in letters of offer may create a contract. Because of this, letters should 
not include the following: 
1. References to permanent employment, termination for just cause, 
probationary periods, specific expectations of performance, or salary 
increases. A copy of the position description can be provided to the 
employee after acceptance of the position. 
2. Specific causes for termination or dismissal. 
This language calls into question the legitimacy of the letters fro it also 
blatantly contradicts the "Guidelines for Permanent Residency Sponsorship" submitted by the petitioner. 
In light of the above, the matter is remanded to the director for the sole purpose of advising the petitioner of 
the derogatory evidence publicly available on its own website and affording the petitioner an opportunity to 
respond pursuant to the regulation at 8 C.F.R. 3 103.2(b)(16)(i). We note, however, that, as stated above, any 
attempt to explain or reconcile inconsistencies in the record, which now includes the petitioner's own 
policies as reflected on its website, will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 59 1-92. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 8 1361. 
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 that, rl?pnrtiless, is to 
be certified to the Administrative Appeals Office for review.