sustained EB-1B Case: Medical Research

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. 
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Robert hmfiiinn, Chief 
Administrative Appeals Office 
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 public university. It seeks to classifL 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. 
8 1153(b)(l)(B). According to the petition, the petitioner seeks to employ the beneficiary in the United 
States as a senior research associate. The record reveals, however, that the petitioner had already 
offered the beneficiary a position as a research investigator as of the date of filing. 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 and a June 6,2006 Interoffice Memorandum from Michael Aytes, 
Acting Director for Domestic Operationg, Citizenship and Immigration Services (CIS). 
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 
(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 wd 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 fram 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 qr 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 111 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 "offer7' 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 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 
Page 4 
have an expectation of continued employment unless there is good cause for 
termination. 
On Part 6 of the petition, the petitioner indic 
 ed employment was a permanent 
position. The petitioner submitted a letter fiom 
 ddressed to CIS, asserting that the 
beneficiary "has been employed as a Senior Research Associate" but "is now being appointed as [a] 
Research Investigator," a faculty position. This document does not constitute a job offer from the 
petitioner to the beneficiary. On December 20,2005; the director requested evidence that the petitioner 
had extended a permanent job offer to the beneficiary. 
In response, the petitioner submitted a July 1, 2003 letter to the benefici 
 offering the beneficiary a 
position as a senior research associate. The letter specifies that &an only provide salary 
support for two years, after which it "is our expectation" that the beneficiary would generate her own 
fimding. The petitioner also submitted a letter dated October 10, 2005, addressed to the beneficiary 
advising her that she had been recommended for appointment as a research investigator, a "primary 
research track faculty" position. A final letter addressed to the beneficiary dated October 18, 2005, 
confirms the beneficiary's appointment as a Research Investigator. 
The director concluded that the October letter~~postdated the September 30, 2005 filing date and that 
research associate position was not qualikng. On appeal, counsel asserts that the research associate 
position was permanent. 
The 2003 job offer indicated that fimding was only qvailable for two years, a shorter period than for 
some nonirnrnigrant visas. Prior to the date of filing, however, the petitioner obtained a grant fiom the 
National Institutes of Health for Rhinovirus and COPD exacerbations listing the beneficiary as a co- 
investigator. Thus, the record establishes that, the expectation of continued hnding for the project is 
reasonable. 
Moreover, the petitioner need only have offered the beneficiary a permanent position as of the date of 
filing, it need not have completed the appointment process. The initial petition was submitted with 
evidence that the petitioner had begun the process of appointing the beneficiary as a research 
investigator. Days later, the job offer for this position was reduced to writing and a few days after that 
the appointment was confirmed. As such, we are satisfied that the offer predated the filing of the 
petition. 
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 appeal will be sustained and the 
petition will be approved. 
ORDER: 
 The appeal is sustained and the petition is approved.