remanded EB-1B Case: Medical Genetics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: X 8 1005 
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. $ 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
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. 
u %obert P. Wiemann, Director 
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. 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 university. It seeks to clasify 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. § 1 1 53(b)(l)(B). According to 
the petition, the petitioner seeks to employ the beneficiary in the United States as a research scientist. 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, counsel submits a brief. 
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 ~esearcherd. -- 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, 
(II) 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. 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An offer of employment fi-om 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 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 (7'' ed. 1999) defines ''.offerW 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." ALM7s online 
law dictionary, available at www.law.com, defines offer a,s "'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 find 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) afJimzing the beneficiary's 
employment is not a job offer within the ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 8 204.5(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 as a "research scientist" was a 
permanent position. The petitioner submitted a letter fk~m Dr. Director of the petitioner's 
Human Cancer Genetics Program and Chairman of its Department of Molecular Virology, Immunology and 
Medical Genetics, addressed to CIS, asserting that he supports the beneficiary's petition for permanent 
residence. This document does not constitute a job offer from the petitioner to the beneficiary. On May 18, 
2005, the director requested evidence that the petitioner had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted a letter fkom Administrative Manager of the petitidger9s 
Human Cancer Genetics Program, addressed "To Whom It May Concern" confirming that the beneficiary is 
working for the petitioner as a Research Assistant Professor and asserting that the petitioner has offered the 
beneficiary '"permanent employment in this position." 
The director noted that the petitioner's response did not include the actual job offer and concluded that the 
record did not establish either that the petitioner had offered the beneficiary the position of Research Assistant 
Professor as of the date of filing or whether the position offered to the beneficiary at the time of filing was 
permanent. 
On appeal, counsel quotes the second half of the regulatory deqnition of "permanent," omitting the requirement 
that it be "for a term of unlimited or indefinite duration." Counsel further 'asserts that the filing of the petition 
and the submission of a letter in support of the petition evidences the petitioner's intent and expectation of the 
beneficiary's continued employment with the petitioning institution. The petitioner submits a new letter from 
Ms. Delffs, affirming that the individual who signed the petition has authority to do so and oversees the 
beneficiary's "employment matters." Ms. Delffs asserts &that the research scientist position held by the 
beneficiary as of the date of filing was "a regular, full-time position within the University." She continues: 
Since, like most private employers, [the petitioner] i;s an "at-will" employer, we do not use the 
term "permanent" but instead refer to employeeswho are not temporary as "regular." It has 
always been the case, and still is, that [the be~eficiary's] position with the University, as are 
such regular positions, not temporary ones, with an expectation of continued employment [sic]. 
[The beneficiaryl) was offered orignally the position of Research Assistant Professor, which is 
classified also as a regular full-time position. However, she was not able to assume this 
position until her H-1 petition had been approved and until the University approved thts rank 
internally. 
At the time of the Request for Evidence, both of these issues had been resolved and [the 
beneficiary] had been promoted to [the] Research Assistant Professor position. We confirmed 
thts officially in our letter dated June 24,2005 and re-confirm the offer and anticipate continued 
employment by [the beneficiary]. 
Despite the director's specific request for the job offer letter addressed to the beneficiary and the observation in 
the director's denial that the petitioner has failed to submit such a letter, the petitioner fails to supply this 
required initial evidence on appeal. Counsel's assertion that the petition itself and a letter of support 
demonstrate an intent to employ the beneficiary permanently is not persuasive. As quoted above, the regulation 
at 8 C.F.R. 5 204.5(i)(3)(iii) requires a job offer letter offering the beneficiary a permanent job, subsequently 
defined in the regulations as one with a term of unlimited or indefinite duration. Confirmation of employment 
that uses the word "permanent" without providing the actual terms of the employment is insufficient. Moreover, 
Ms. Delffs definition of the word "permanent" does not appear to be consistent with the regulatory definition as 
her letter on appeal concedes that the beneficiary's employment is "at-will." "Employment at will" is defined 
as "Employment that is usu. undertaken without a 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). 
For the above reasons, the appeal does not succeed on its merits. The claim that the position is "permanent," as 
defined in the regulation quoted above, however, is also contradicted by the petitioner's own policies as 
reflected on its website. The petitioner should be aware of its own publicly available policies. Nevertheless, the 
petitioner 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. The searchable database for job classifications available on the petitioner's website indicates that the 
"TGIC" code for research scientists is "U." The "Definitions of Codes Used in Listing of [the 
petitioner's] Job Classifications," also available on the site, provides that the "TGIC" code "U" 
represents an "unclassified position." 
2. Rule 4.20(1) of the petitioner's Appointments Policy provides: "Regular, unclassified appointments 
are at will." "Applicant Resources," at hr.osu.edu/emp/application.htm, provides that "Unclassified 
positions are not subject to the provisions of section 124.34 of the Ohio Revised Code, which means 
that employment is at-will and may be ended at any time either by you or the university." (Emphasis 
added.) 
3. "Letters of Offer for Unclassified Staff, Senior Administrative and Professional," which can be 
downloaded from the petitioner's website, 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. 
2. Specific causes for termination or dismissal. 
This language strongly suggests that the relevant issue -is not whether the research scientist position is a 
"regular" position, but whether the position is "classified," as unclassified employment may be terminated 
without cause. As quoted above, the definition of "permanent" set forth in the regulation at 8 C.F.R. 
9 204.5(i)(2) requires that the employment may only be terminated for cause. Regardless of whether the 
beneficiary was employed as a Research Assistant Professor as of the date of filing, the relevant issue is 
whether the petitioner had offered her that position as of the date of filing. The record contains no evidence 
that it had done so or that the Research Assistant Professor position is a "classified position. 
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. § 103.2(b)(16)(i). We note, however, that 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. 582,59 1 (BIA 1988). 
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. 
Page 6 
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, -, is to 
be certified to the Administrative Appeals Office for review.