sustained EB-1B Case: Medical Research

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
FILE: 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: a 2 9 2007 
LIN 06 012 52421 
PETITION: 
 Irnrmgrant 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 1 153(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. 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director reaffirmed the decision on motion. The matter is now before the Administrative 
Appeals office (AAO) on appeal. The appeal will be sustained and the petition will be approved. 
The petitioner is a higher education and research 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. § 1153(b)(l)(B). According to the petition, the petitioner seeks to employ the 
beneficiary in the United States as an "assistant professorlresearch 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, concluding that the petitioner had failed to respond to a notice of intent to deny. 
On motion, counsel asserted that the petitioner had, in fact, replied to the notice of intent to deny and 
resubmitted that filing. The director considered the new evidence and reaffirmed the initial basis of 
denial, that the petitioner had not offered the beneficiary a permanent job as of the date of filing. 
On appeal, counsel submits a brief, a September 12, 2006 Interoffice Memorandum from Michael 
Aytes, Acting Associate Director for Domestic Operations, Citizenship and Immigration Services (CIS) 
and additional evidence. 
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 
Page 3 
(111) 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 oger of employment from 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 oflering 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 1 1 1 1 (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) afirming 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: 
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 
 ent was a permanent 
position. The petitioner submitted an April 6,2005 letter fro 
 Head of the petitioner's 
Department of Laboratory Medicine and Pathology. The letter is addressed to the beneficiary and 
offers him a "Research Associate (K) position." The beneficiary was mher advised that he would also 
continue his "without salary Assistant Professor appointment type." The beneficiary was advised his 
annual base salary would be $45,000. The letter references the petitioner's policies and procedures 
manual, available on the Internet. 
The director accessed the petitioner's website and reviewed the policies for (K) appointments. Noting 
that (K) appointments are date specific and that renewal is discretionary and not grievable, the director 
concluded that the position was not permanent as defined at 8 C.F.R. 5 204.5(i)(2) and issued a notice 
of intent to deny the petition on December 23, 2005. On March 10, 2006, the director concluded that 
the petitioner had failed to respond to the notice of intent to deny and denied the petition based on the 
reasoning set forth in the notice of intent to deny. 
On motion, the petitioner resubmitted its response to the notice of intent to deny. 
petitioner submitted a brief; a statement from former Acting Deputy Director, CIS, 
letter from asserting that K-Track positions are for non-teaching, senior research staff and 
that the petitioner has sufficient funding for the beneficiary's continued employment; a letter from Dr. 
Program Leader for-the petitioner's cancer ~rogression &d Metastasis Program, 
asserting that he anticipates continued funding for the beneficiary's position in his laboratory and 
evidence of current funding. 
The director reaffirmed the initial denial, acknowledging that "the beneficiary has the expectation of 
continued employment and has ample research knding until 201 1 ," but concluding that the existence 
of "continuous" (G) appointments at the petitioning institution, which the director deemed more 
comparable with tenure-track appointments than (K) appointments, precluded a finding that the 
beneficiary's position was sufficiently permanent. 
On appeal, the petitioner submits a letter from its Director of Human Resources, 
explaining that it is "contrary to the policy and practice of [the petitioner] to 
the G Series." In a new letter,provides similar information. The petitioner also provided a 
list of senior researchers, some of whom have been employed with the petitioner for ten or more years. 
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" 
are sufficiently comparab'le. (Emphasis added.) Employment-Based Immigrants, 56 Fed. Reg. 
60867,60899 (November 29,1991). 
Unlike (J) appointments, which cannot exceed five years, (K) appointments may be renewed 
indefinitely. Series (K) appointments also require written notice of nonrenewal. As acknowledged by 
the director, the beneficiary enjoys an expectation of continued employment and the position appears 
well-funded. Thus, we are persuaded that the position is permanent as defined at 8 C.F.R. 
5 204.5(i)(2). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U. S.C. $j 1 36 1. 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.