sustained EB-1B Case: Academic Research

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 04 252 53062 Office: NEBRASKA SERVICE CENTER Date: I 1 2006 
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. 9 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 
7 Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 04 252 53062 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
sustained and the petition will be approved. 
The petitioner is a research and education institution. 
 It seeks to classify 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 in the United States as a Research Associate 11. 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, the petitioner's Office of International Education's guidelines and a 
clarification of a previous job offer. Subsequently, the beneficiary submitted a request to withdraw the 
appeal. The beneficiary, however, has no standing in this matter. 8 C.F.R. § 103.3(a)(l)(iii). Thus, we 
cannot recognize his request to withdraw the appeal. 
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 
LIN 04 252 53062 
Page 3 
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 (7th ed. 1999) defines "offer" 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." The online law dictionary by American Lawyer Media (ALM), available 
at www.law.com, defines offer as "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 concur with the director 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) affirming the beneficiary's employment is not a job offer within the 
ordinary meaning of that phrase. 
The regulation at 8 C.F.R. 5 204.5(i)(2), provides, in pertinent part: 
LIN 04 252 53062 
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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 ro osed employment was a permanent 
position. The petitioner submitted a letter from a professor and program director at 
the petitioning university, addressed to the beneficiary, asserting that the offer "is of indefinite or 
unlimited duration in which you should expect continued employment." 
 The letter refers the 
beneficiary to the petitioner's website for a discussion of the job's benefits. 
The director visited the petitioner's website and determined that Rule 4.20(1) of the petitioner's 
Appointments Policy provides that regular unclassified appointments are "at will." Additional 
information on the website relating to job offer letters for unclassified positions advised that such letters 
should not include "references to permanent employment" or "termination for just cause." The director 
concluded that this information was inconsistent with the job offer letter submitted. 
On appeal, counsel asserts that the website information on which the director relied was intended to 
prevent inadvertent contracts, not to preclude intentional offers of indefinite employment. 
In promulgating the final regulation, the Immigration and Naturalization Services, now CIS, 
recognized that it is unusual for colleges and universities to place researchers in tenured or tenure- 
track positions. Thus, the commentary to the final rule accepts that research positions "having no 
fixed term and in which the employee will ordinarily have an expectation of permanent employment" 
as comparable. (Emphasis added.) 56 Fed. Reg. 60867, 60899 (November 29, 1991). While 
university policies are useful in explaining terms or conditions not explicitly set forth in a job offer, 
any actual terms and conditions set forth in the written job offer constitute the offer. In this matter, 
the terms and conditions set forth in the letter addressed to the beneficiary submitted in support of 
the petition expressly provide that the job is for an indefinite or unlimited duration. Thus, the 
petitioner has complied with the regulation at 8 C.F.R. tj 204.5(i)(3)(iii). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has met that burden. Accordingly, the appeal will be sustained and the 
petition will be approved. 
ORDER: 
 The appeal is sustained and the petition is approved.