sustained EB-1B Case: Biomedical Research

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U. S. Citizenship 
and Immigration 
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 BY 
FILE: 
 Office: VERMONT SERVICE CENTER Date: EV\R 0 g 1001 
EAC 05 234 51301 
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. 5 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. 
V 
T~obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now 
before the AAO on motion to reopen. The decision of the AAO will be withdrawn, and the petition 
will be approved. 
The petitioner is a biomedical research institute. 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. 
5 1153(b)(l)(B). According to the petition, the petitioner seeks to employ the beneficiary in the United 
States as a postdoctoral 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. 
On appeal, counsel submitted a brief and additional evidence. Subsequently, counsel submitted a June 
6, 2006 Interoffice Memorandum from , Acting Director for Domestic Operations, 
Citizenship and Immigration Services (CIS). The AAO concluded that it could not consider the various 
assertions regarding a job offer that was not part of the record. 
On motion, counsel questions the AA07s insistence that an employer comply with the requirement to 
submit a job offer and asserts that confirmations after the fact do not implicate the concerns expressed 
in Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). 
 Despite counsel's continued 
assertions that a job offer from the petitioner to the beneficiary is not required initial evidence, counsel 
includes the document with the motion. 
*. 
According to 8 C.F.R. 5 103.5(a)(2), a motion to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. In this matter, new evidence is submitted in 
support of the motion. 
We note that the evidence submitted on motion, a job offer letter dated August 18, 2003, was 
previously requested by the director. Nevertheless, the petitioner gave a substantive response to the 
director's request for additional evidence. The director's final notice of denial focused on the title of 
the position rather than the lack of an actual job offer. Faxed correspondence to this office suggests 
that counsel and other attorneys have consistently received favorable determinations in similar cases 
without submitting an actual job offer. Thus, based on previous experience, counsel believed that he 
was complying with the director's request. Given the apparent confusion as to what evidence was 
being requested, we will consider the new evidence. While we reject counsel's assertions that the 
previously submitted evidence was sufficient without the actual job offer, we find that the petitioner has 
now established that it had offered the beneficiary a sufficiently permanent position 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): 
Page 3 
, 
(B) Outstanding Professors and Researchers. -- An alien is described in ths 
subparagraph if -- 
(i) 
 the alien is recognized internationally as outstanding in a specific 
academic area, 
(ii) the alien has at least 3 
 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, 
( 
 for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(m) 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. 5 204.5(i)(3)(iii) provides that a petition must'be accompanied by: 
An offer of employment fiom 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. 
Page 4 
(Emphasis added.) In faxed correspondence to this office prior to the motion, counsel asserted that 
he had never submitted an actual job offer letter in support of petitions of this type. The AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that CIS or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAOYs authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved petitions of this 
type without the evidence mandated by the regulations, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As stated in our previous decision, 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 reaffirm our conclusion that the ordinary meaning of an "offer" requires that it 
be made to the offeree, not a third party. 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. tj 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. In support of the concurrently filed Form 1-485 Application to Register Permanent Residence 
or Adjust Status, the petitioner submitted a June 9, 2005 letter from, migration 
Specialist, addressed to CIS, asserting that the beneficiary was employed as a postdoctoral researcher. 
- 
Page 5 
This document does not constitute a job offer from the petitioner to the beneficiary. On January 3, 
2006, the director requested evidence that the petitioner had extended a permanent job offer to the 
beneficiary. In response, the petitioner submitted a similar letter from Ms. dated December 23, 
2005. Nothing that postdoctoral positions are typically for a fixed term, the director determined that the 
record did not establish a valid offer of permanent employment. 
On appeal, counsel asserted that postdoctoral positions with the petitioning institute are not comparable 
to the typically temporary postdoctoral positions with universities. In support of this assertion, the 
petitioner submitted two letters from Dr. , a member of the petitioning institution, 
providing the same information. One of the letters is addressed to the director and one is addressed to 
the beneficiary, who signed the letter in 2006. The letters reference a September 1, 2003 offer. 
Subsequently, counsel submitted a June 6,2006 memorandum fiom Acting Director for 
, CIS, addressing the issue of permanent job offers in .the context of the 
classification sought. Nothing in this memorandum, however, suggests that the original job offer is not 
required initial evidence. 
The AAO concluded that the petitioner had not submitted the primary required initial evidence, the 
original job offer predating the filing date of the petition. In reaching this decision, the AAO stated that 
confirmations after the fact are not evidence of eligibility as of the date of filing. See general& 
8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). The AAO 
further noted that the petitioner had not complied with the regulation at 8 C.F.R. tj 103.2(b)(2) 
regarding the submission of secondary evidence. Specifically, the petitioner had not demonstrated that 
the original 2003 job offer does not exist or is unavailable. While the AAO did not question the 
credibility of Dr.- or Ms. it concluded that counsel had not sufficiently explained 
why the AAO should accept attestations about the terms and conditions in a document in lieu of the 
document itself. Without the initial job offer, the AAO could not consider the petitioner's explanations 
about the terms and conditions set forth in that job offer. 
On motion, counsel asserts: 
At the outset, we suggest that this puts form over substance. What about companies that 
do not issue job offer letters? What if the original job offer letter is silent as to whether 
the position is permanent or temporary? Is the Service holding that even with an 1-140 
supported by a later issued employment letter, the petition is doomed because of the 
lack of or insufficiency of the original letter? 
Counsel fails to acknowledge that the AAO specifically noted the lack of evidence that, in this matter, 
the job offer was unavailable or did not exist. Where such unavailability can be demonstrated, a 
petitioner may rely on secondary evidence, such as an employment contract or personnel records. 
8 C.F.R. tj 103.2(b)(2). Only where secondary evidence is similarly unavailable or does not exist may a 
petitioner rely on affidavits alone. Id. Thus, in situations where an employer does not issue formal job 
offer letters, as proposed by counsel, the employer would be able to submit secondary evidence that 
such an offer was made prior to the date of filing in accordance with the regulation at 8 C.F.R. 
8 103.2(b)(2). The record is not persuasive, however, that universities and private research institutions 
with at least three full-time employees, the only eligible employers who can file petitions pursuant to 
section 203(b)(l)(B) of the Act, do not normally maintain any written record of their offers of 
employment and the terms of that employment. 
Next, counsel challenges the AA07s reliance on Matter of Katigbak, 14 I&N Dec. at 49. Specifically, 
counsel notes that the letter from Dr. while dated after the filing of the petition, relates back 
to a job offer in 2003, well before the filing of the petition. Insofar as Dris asserting that the 
job offer in 2003 as extended at that time was permanent, counsel is correct. Any implication that the 
job was converted to a permanent position after the petition was filed, however, would be problematic. 
See also Matter of Izummi, 22 I&N Dec. 169, 175 (Cornrn. 1998). Moreover, we continue to find 
that a confirmation of a prior offer is not the primary evidence required, the actual job offer. Rather, 
it constitutes less than an affidavit as to the existence of a job offer. Even affidavits are only 
permissible when the petitioner has demonstrated that primary and secondary evidence do not exist 
or are unavailable. 8 C.F.R. § 103.2(b)(2). 
As stated above, the petitioner now submits an August 18, 2003 letter from -) Jr., 
Human Resources Officer for the petitioner, addressed to the beneficiary offering the beneficiary a 
position as a postdoctoral associate. Nothing in the letter suggests that the position was only offered for 
a limited period of time. 
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). 
The petitioner has now submitted the initial required evidence, the job offer that was extended to the 
beneficiary as of the date of filing. Nothing in this offer, or anything else in the record, is 
inconsistent with the affirmations in the record that this position with thepetitioning institute has no 
fixed term. Thus, the petitioner has now satisfied its burden. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has met that burden. Accordingly, the AA07s previous decision will 
be withdrawn and the petition will be approved. 
ORDER: 
 The decision of August 2,2006 is withdrawn, and the petition is approved.