remanded EB-1B Case: Medical Research

U.S. Dspsstment of Homeland Secaasifg 
20 Mass. Ave., N.W., Rm. A3342 
Washington, DC 20529 
US. Citizenship 
and immigration 
FEE : Office: NEBRASKA SERVICE CENTER Date: $2 Q i@$ 
EN 693 178 50444 
PETITION: IIm~gant Petition for Alies, Worker as O~tstandang Professor or Researcher Pursuant to 
Sect~on 203(b)(B)(B) sf the Im9:gratlon and Nationality Act, 8 U.S.C. 3 1153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office m your case. All documents have been returned to 
the office that originally decided your case. Any fuflher inquiry mst be made to that office. 
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9 Robert P. Wv'lemann, Director 
Adm~n~stratnve Appeals Office 
DISCUSSION: The eqloymect-based ~migant vlsa pet~tnon was denled by the D~recto~, Nebraska Servace 
Center, and 1s now before the Admlrnstrat~ve Appeals Office on appeal. wik the appeal does not succeed on 
sts ments, we w~th&aw the d~rector's decis~on and remand the matts for the sole purpose of afbrdmg the 
petitnoner an oppo~tunlty to ~espond to derogatory ~nfonnatnon publ~cly avallable on the petnt~oner's om 
website accessed 5y tk~s office. 
The petatloner IS a university. It seeks to  class^@ the beneficxry as an outstandnng researcher pursuant :o 
sect~oa 203(b>(l>(B> of the grat~on and Nat~onahty Act (the Act), 8 U.S.C. 5 B 153(b)(l)(B). Accordnng to 
the petntnon, tke pemoner seeks to employ the beneficiary zn the United States as a research scientist. The 
darector detem~ned that the petltlmer had not establnshed that nt had offered the beneficnary a permanent j& as 
of the date of filing. 
Section 203(b) of the Ace states, in pertinent part, that: 
(1) Priority Workers. -- Vrsas shall first be made available . . . to qualified immigrants who a~e aliens 
descnjed in any of the following subparagraphs (A) tzkough (C): 
QB) Outstanding Professors and Researchers. -- An alien is described in fhis subppzrag-aph if -- 
(i) the alien is recoplzed intemationajly as oratstanding in a specific academic 
area, 
(ii) the alien has at least 3 years of experience in teaching or research in the 
acadenic area, and 
(iii) the alien seeks to enter the United States -- 
(1 for a tenured position (or tenure-track position) withn a university 
or institution of higher education to teack in the academic area, 
(11) for a comparable position with a miversify or institution of higher 
education to conduct research In the area. or 
( for a compara5le posatlon to conduct research m the area wnth a 
department, divls~on, or ?ast~k~te of a pnvzte employer, nf the 
department, davlsion, or mst1tu.k employs at least 3 persons full-tnme i~ 
research actlvltles and has achleved documented acconplnshents in an 
academlc field. 
'The regulation at 8 C.F.R. $ 204.5(i)(3)(iii) provides that a petition mustbe accompanied by: 
h offer of employment horn a prospective United States employer. A iabor certification is not 
requ~red for this classification. The offer of employment shall be in the fom of a letter from: 
(A) A United States unrversrty or mshtut~on of h~gher iearn~ng offerng the allen a 
tenured or tame-track teach~ng powtion annc the aiaen's academac field; 
QB) A United States university or institution of higher learning offering the alien 2 
permanent research position in the alien's academic field; or 
(C) A department, division, or instit~te of a private empioyer offering the alim a 
pemanent research position in the alimqs academic field. The department, division, or 
institute nust demonstrate that it employs at Beast thee persons full-time in research 
positions, and that it has achieved documented accomplish,ents in an academic field. 
The regulatim a: 8 G.F.R. $204.5(i)(2), prov:des, in pertinent part: 
Permanent, ~na reference to a research pos~taon, means either tenured, tenure kick, or for a term 
of indefin~te or mllmited duratlm, and nn whch the employee walhrdanan~y have an 
expectatlon of continued employment unless there is good cause for tem~nation~ 
On Part 6 of the petition9 the petitioner indicated that the proposed employment was a pemanent position. The 
petitio~e: sxbmitted a lettm from Dr. Jay L. Zweier, Director of the Davis Heart and L~ng Research Institute, to 
Citizenship and Immigration Services (CIS), affirming that the beneficiary is 2 research scientist in his 
laboratory at the petitioning university. The petitioner also submitted a grant application s~bmitted to the 
hencan Heart Association stating that if hfided as requested, the 2etitioner would promote the beneficiary to 
the rank of Assistant Professor. Neither document constitutes a job offer from the petitioner to the beneficiary. 
On January 16,2004, the director requested evidence that the petitioner had extexled a pemanent job offer to 
the beneficiary, inclmding any employment contract a2d the o-Rgnal job offer letter. 
h respocse, counsel asserted tha: the pos~taon of research scaentlst was a pemanent pos~tiom pnacon^.parabPe to 
tenwe track. The petatloner submMed the pos:tion descnpt~on for Research Sciegtnst ~ndacatmg :hat such staff 
fall wlthn the Senlor Adminmlstratlve and Profess~onal category, ('may be zppoanted for maefinile penods of 
:am" and that the salary 1s comparable to tenure track faculty. The petatloner also submntted a January 23,2003 
letter 5on Dr. Zweler addressed to the kenefic~ary ofknng a promohon to research scie~tast and a Zet~ from 
Bryan Ford, Human Resources Coordinator, assert~ng that the posltaon of research scnegtnst 1s a "full-time 
pemanent posntaon." The letter, however, also refe~ences "renewal cond~:~ons." 
The &rector noted that the January 23, 2003 letter d~d not address the issue of pennmence and co~cluded that 
the pet~tioner had not met the regulatory evidentiary requirement of subnutting a letter offering the benefic~ary a 
pemanent research posltlm in his academic field. 
811 appeal, counsel asserts that the evldence submitted an support of the petitaon adequately eslabl~shes the 
~ennanent nature of the job offer. ComseB further asserts that the regu1a:lons do not descr~be the form the >ob 
offer nust take. The 7etltloner submats a new letter from Dr. Zwe~e: assert~ng that the posntlon of research 
sc~entast IS pcnnanent and assertmg that the job 1s covered by the petitaoner's rules, reslations and pollc~es as 
set forth on ats website. Thomas 9. Rosol, Semor Assoc~ate Vace Resaden3or Research, ;lrovades snmlar 
mfomat~on, also refemng us to the -~etltloner's website. 
Page 4 
We concur with the darector that the ord~nary meannng of an "offer" requayes that :; be made to the offeree, not a 
tlaard party. Reg~zatoy language reqrunng that the offer be made "to the beneficnary" would simply be 
redmda2t. Thus, a letter addressed to CIS 1s not a job offer withn the ordinary meanmg of that phase. Further, 
coaznsel's assertion that any person "watl? comoi sense, and basac legal laaowiedge and reading sbll would 
how" that the posatso~ IS permanent as not persuasive. Speclfically, the use of general words such as 
"pemanent9' as not detemnat~ve am establ~shang tiPat the terns of the pos::aon meet the regulatory defimt~on of 
pemanent. Th~s proposatnm 1s espec~ally hue when the assertnon of permanence as contradacted by other 
nnfomatlon, sometames In the same letter, such as Mr. Ford's reference to "renewal." 
S~gn~ficantly, the clam that the posltzon 1s "permanent," as defined an the replat~on q~oted above, 1s 
contrad~ctecl by the petitioner's own polncles as reflected on ats websate, wkch the petlt~mer has ~nv~ted us to 
wsnt. The petntaoner shocld be aware of ~ts om publncly available polscies that ~ts representat~ves have ~nvlted ,s 
to rewew. Nevertheless, at has not been af'orded an opporkmty to respond to ow concerns regardnng ats 
polac~es, whch we have now made part of the record. Thus, we wnthd-aw the dnrector's decrs~on and remad 
the matter to the darecto: for the sole purpose of afford~ng the petat~mer an oppo-aty to respond to t3e 
fol?owa-~.ang nnfonnataon obtalned from 1:s webs~te. The d~rector should enclose copies of the anfoma~aon, 
summarlzed as follows: 
1. The searchable database for job ~Passifications available on the petitioner's website indicates that the 
"TGEC" code for research scientists is "U." The "Definitions of Codes Used in Listing of [the 
petitioner's] Job Classifications" also avaiiable on the site provides that 'TTGHC" code "U" represents 
an "uncBassified position." 
2 Rule 4.20(H) of the petil:oner7s Appomtments Polacy prov~des: "Regular, u~classnfied apponntaanents 
are at wall." "Appl~cant Resousces," at ku.osu.edu/emp/app1i~at1on.hh~ provides that "Unclassa5ed 
positaons are cot scbject to the provisions of sect~on 124.34 of the 01-~o Revnsed Code, which means 
that employment ns at-wi?B and may be ended at a~y tnme enther by you or the un~versnty," 
"Employment at wnlI9' ns defined as "'Employnent that as usu. undertaken wnthoct a contract a17d that 
may be ternmated at any tnme, by either the employer or the enployee, wathout cause " Black's Law 
Dnct~onary 545 (7th ed. 2001). 
3. "Letters of Offer for Unclassifiec! Staff: Senior Administrztive and ProSessionaal," which can be 
downloaded from the petitioner's website, pzov~des: 
Laraguage in letters of offer may create z contract. Because sf this, letters should 
not include Phe following: 
1, References to permanent employment, temiraation for just cause, 
probationary ?er:ods, specific expectataons of performance, or salary 
increases. 
2. Specific causes for termination or dismissal. 
Th~s language strongly suggests that the relevant nssue as not wkether the research scaentlst positron falls 
wathin the Sexor Admmnistrat~ve an$ Professional category, b~t whether the posntion as c:ass:fied, as 
Page 5 
unclassified employment may be terminated without cause. As q-noted above, the deSnition of ""pmnent" 
set forth in the regulat~on at 8 C.F.R. 5 204.5(1)(2) requnres that the emp?oyment may only be terminated for 
cause. 
h Bight of the above, the matter rs remanded to the dlrector for tke sole purpose of adv~smg the petntioner of 
the derogatory evidence pub1:cly available on ~ts own website acd afforkng the pet:'cnoner an spportunlty to 
respond pursuant to the regulation at 8 C.F.R. 4 103.2(b)(86)(1). We note, however, that any attempt to 
explann or reconc:le nnconsaste3cies m the record, whnch now nnc:udes the petlzioner's own polncnes as 
refected on r'cs websnte, will not saffice unless the pet~t~oner subm~ts competent objective evndeznce poin'cnng 
to where the hut;? 1:es. Matter ofHo, 19 I&W Dec. 582, 591 (BU 1988). 
As always in these proceedmgs, the burden of proof rests solely with the petitioner. Sectio~ 291 of the Act, 
8 U.S.C. $ 1361. 
OmER The director's dec~s~on ns wr~hdrawzi. The pet~t~on ns remanded to the 61rector for Lrther act~on 
:n accordance with the foregoncg and entry oi'a new decns~on that, , ns to 
be cert~fied to the Admin~stratave Appeals Office for revnew.