remanded EB-1B Case: Medical Research

U.S. Deparlmenl of Homeland Security 
20 Mass. Ace., N.W., 2m. A3342 
Washington, DC 20529 
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U. S. Citizenship 
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2 IkE: Office: XEBRASKA StRViCE CENTER Date: gfj? g 0 
PETITION: higrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Sect~on 203(b)(l)(B) of the Immigration and Nationality Act, 8 U.S.C. 5 I 153(bj(l)(B) 
ON BEHALF OF PE'TITIONER: 
This is tile decision of the Administrative Appeals Office In your case. Ail documents have been returned to 
the office that ongnal1y decided your case. Any further ixquiry must be made to that office. 
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9 Robert P. Wlemann, Dlrector 
Adrn~nlstratlve Appeals Office 
3ISCUSSHOe': The employment-based immigrant visa petition was denied by the Director, Nebraskz Service 
Center, and is now before the Administrative Appeals Office on appeal. the appeal does not succeed or, 
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 tkis office. 
The petitloner is a university. It seeks to classify the beneficiary 2s an outstanding researcher pursuant to 
section 203(b)(l)(B) of the Emmigration and Nationality Act (the Act), 8 U.S.C. $ 1153(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 jo3 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 idgrants who are aliens 
descrijed in any of the following subparagraphs (A) t;uough (C): 
(83) Outstvlding Professors and Researchers. -- An alien is described in this subparagraph if -- 
(I) the a!ien is recoplzed internationally as wiltstanding in a specific academic 
area. 
fii) 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 -- 
( for a tenured position (or tenure-track position) witlun a university 
or institution of higher education to teach in the academic area, 
(a) for a comparable position with a miversity or institution sf hlgher 
educatio;~ to conduct research in the arez, or 
(1 for a compara5le position to conduct research in the area with r 
department, division, or instipte of a private employer, if the 
depaPtment, division, or institute employs at least 3 persons full-time ir. 
research activities and has achieved documented accorrrplishmena in an 
academic field. 
The regulation at 8 C.F.R. $204.5(i)(3)(iii) provides that a petition musk be accompanied by: 
An offer of employment from a prospective United States employer. A iabor certification is not 
required for this classification. The offer of employment shall be in the form of a ietter from: 
(A) A e'nited States university or msiit~tion of higher iearning offering the alien a 
tenured or tenure-track teaching position m the alien's academic field; 
(B) A United S:ates university or institution of higher learning offering the alien 2 
permanent research position in the alien's academic field; or 
(6) A department, division, or instit~te of a private employer offering the alim a 
permanent research position in the alim's academic field. The dq-ent, di~lsion, or 
institute must demonstrate that it employs at least three persons full-tine in research 
positions, artd that it has achieved documented accornpli~~ents in an academic field. 
The regulatior! at 8 C.F.R. 204.5(i)(2), prov~des, in pertinent part: 
Pernianent, in reference to a research position, means either tenured. tenure track or for a term 
of indefinite or unlimited duration, and in whlch the employee wili mdinariiy have an 
expectation of continued employment unless there is good cause for termination. 
Cn Part 6 of the petltim. the petitioner indicated that the proposed em?loyrnent was a permanent posdlon. The 
pei~t~o~er sibrn~tted a le:tm from ~r. D~rector 0. t he Davis Heart and hng Research hstltute, to 
Cltizensh~p and h~gration Services (CIS), affirmrng that the beneficiary 1s 2 rese~rch sc~entist In E?IS 
laboratory at the ?etiti&ing university. The petitioner also submitted a &;nt application sabrnitted to the 
.4merican Heart Association stating that if hded as recuested, the 7etitioner 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 exterzderi a pemanent job offer to 
the beneficiary, inclilding any employment contract a2d the origixal job offer letter. 
response, counsel asserted tha.; the position of research scientist was a permanent posiiion co~~par~ble to 
tm.i?ure trac~. The petitioner submitted the position description for Research Sciegtist indicating that such staff 
fall within the Senior Administrative and Professional category, "may be zppointed for indefinite periods of 
rime" and t3at the salary is cornparable to tenure track faculty. The petitioner also subrnittd a Janwry 23, 2003 
letter fion Dr. addressed to the beneficiary offering a ?remotion to research scientist and a ;etter from 
Human Resources Coordinator, asserting that the position of research sc~entist is a "full-5me 
permanent position." The letter, however, aiso references "renemlal conditions." 
The director noted t-hat the January 23, 2003 letter did not address the issue of permznence 2nd coccluded that 
the petitioner had not met the regulatory evidentiary requirement of s~bmitting a lerter offering the beneficiary a 
permanent research position in his academic field. 
DE appeal, counsel asserts that the evidecce submitted in support ofthe petition adequately es:ablis:?es the 
?emanent narurc of the job offer. Counsel further asserts that the regula'ions do not describe the form the job 
ofr'er must take. The ?etitioner submits 2 new letter from Dr. asserting tha: the position of research 
scieritist is permanent and ob is covered by the petitio~er's rules, regclations and policies as 
set forth on its website. Senior Associate Vice kesident for Research, provides similar 
information, also refemng us to the petitioner's website. 
We concur with the director that the ordinary meaning of an "offer" requires that it be made to the offeree, not a 
thiici party. Regd:atory language requiring that the offer be made "to the beneficiary" would sirr.ply be 
redmdant. '%us, a letter addressed to CIS is not a job offer within the ordinary meaning of that phrase. Fudher, 
co~nsel's assertion that any person "with common sense, and basic legal howiedge and reading slull would 
how" that the positio~ is permanent is not persuasive. Specifically, the use of general words such as 
"permanent" is not determinative in establishing that tne terms of the position meet the regulatory definition of 
permanent. This proposition is especially true when the assertion of permanence is contradicted by other 
information, sometimes in the same letter, such as Mr reference to "renewal." 
Significzntly, the claim that the position is "permanent," as defined in the reg~datio~ quoted above, is 
contradicted by the petitioner's own policies as reflected on its website, which the petitioner has invited rrs to 
visit. The petitioner snocld be aware of its ow publicly available policies that its representatives have invited LS 
to review. Nevertheless, it 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 soIe purpose of affording the petitioner an oppomity to respond to t3e 
following information obtained fiom its website. The director should enclose copies of the infomahion, 
summarized as follows: 
I. 'fie searchable database for job classifications avzilable on the petitioner's website indicates t'cat the 
"TGIC" 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 "TG'IC" code "U" represents 
an "unclassified position." 
2. Rule 4.20(1) of the petitioner's Appointments Policy provides: "Regular, ucciassified appointmcnts 
are at wili." "Applicant Resources," at hr.osu.edu/emp/application.htm, provides that "Unclassified 
positions are rot subject to the provisions of section 124.34 of the Ohio Revised Code, which means 
tkat employment is at-will and may be ended at acy time either by you or :he sniversity." 
"Employment at will" is defined as "Employment that is usu. undertaken without a contract and that 
may be ternmated at any time, by either the employer or the employee, without cause." Black's Law 
Dictionary 545 (7th ed. 2001). 
3. "Letters of Offer for Unciassified Staff, Senlor Administrztive and Professional," wbch can be 
downloaded Som the pe:itioner's webslte. provraes: 
Language in Ietters of offer may create z contract. Because of this, letters should 
not include the following: 
1. References to pennafient 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 fdls 
witbln the Sexier Administrative anC Professional category, bct whether the position is class'fied; as 
unclassified employment may be terminated without cause. As q~oted ebove, the definition of "permanent" 
set forth in the regulation at 8 C.F.R. fj 204.5(i)(2) requires that the employment may only be terminated for 
cause. 
En light of the above, the matter is remanded to the director for tke sole purpose of advising the petitioner of 
the derogatory evidence publicly available on its own website and affording tne petitioner an opportunity to 
respond pursuant to the regulation at 8 C.F.R. 6 103.2(b)(16)(i). We note, however, that any attempt ra 
exr~lain or reconcile inconsistencies in the record, which now inc!udes the petitioner's own policies zs 
reflected on :':s website, will not suffice unless the petitioner submits competent objective evidence pointing 
to where the tnth lies. Matter ofHo, 19 I&N Dec. 582, 591 (BW 1988). 
As zlways in these proceedings, the burden of proof rests solely with the petitioner. Sectioc 2291 of the Act, 
8 U.S.C. 5 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for f~rther action 
in accordance with the foregokg and entry of a new clecision that, -ofoutrome, is to 
be certified to the Administrative Appeals Office for review.