sustained EB-1B Case: Science

PUBLIC COPY 
U.S. Department of .Homeland Security 
20 Mass. Ave., N.W., Rrn. 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. 8 1153(b)(l)(B) 
ON BEHALF OF PETI'TIONEK: 
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. ' 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained and the petition will be approved. 
According to Part 5 of the petition, the petitioner is a "Department of Energy National Labora[tory]." 
The petitioner 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). The 
petitioner seeks to employ the beneficiary in the United States as a staff scientist. The director 
determined that the petitioner is not an eligible petitioner for the classification sought. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
concur with the director's conclusion that a government agency or other public entity cannot file a 
petition seeking to classify a beneficiary as an outstanding researcher pursuant to section 203(b)(l)(B) 
of the Act. Nevertheless, the petitioner in this matter is not a government agency but a private 
employer managing a laboratory for a government agency. 
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 
acadenlic area, 
(11) 
 for a comparable position with a university or institution of 
higher education to conduct research in the area, or 
(111) for a comparable position to conduct research in the area with 
(I department, division, or institute of a private employer, if the 
department, division, or institute employs at least 3 persons full- 
Page 3 
time in research activities and has achieved documented 
accomplishments in an academic field. 
(Emphasis added.) 
The regulation at 8 C.F.R. 5 204.5(i)(3)(iii) provides that a petition must be accompanied by: 
An offer of enlployrnent 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 uniawsity or institution of higher learning offering the alien 
a permanent research position in the alien's academic field; or 
(C) A deparflnelzt, division, or institute of a private employer offering the alien a 
permanent 1-esearch 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 
accornplislunents in an academic field. 
(Emphasis added.) 
The regulation requires a job offer' from an rnstitution of higher education or a private employer. In 
the legislative history, Congress stated that an "invitation for employment by a university or private 
employer must accompany a petition for admission." Family Unity and Employment Opportunity 
Immigration Act of f99U Nouse Rc~ort. H.R. Rep. No. 101-723, 59-60 (Sept. 19, 1990). Thus, it is 
clear that the petition  nus st be filed by an institution of higher education or a private employer. 
Black's Law Dictionary 11 11 (7'h ed. 1999) defines "offern 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 Medla (ALM), available at www.law.com, defines offer as "a specific proposal to enter 
into an agreement w~th another. An offer is essential to the formation of an enforceable contract. An offer 
and acceptance of the off'er creates the contract." Significantly, the same dictionary defines offeree as "a 
person or entity to %,horn an offer to enter into ~1 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.) Thus, a letter addressed to Citizenship and Immigration Services (CIS) aflming the beneficiary's 
employment, is not a job offer within the ordinary meaning of that phrase. 
Page 4 
It is rudimentary that interpretation of the statutory language begins with the terms of the statute 
itself, and if those terns, on their face, constitute a plain expression of congressional intent, they 
must be given effect. Chevron US. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 
837, 842-43 (1994). Where Congress's intent is not plainly expressed, we then need to determine a 
reasonable interpretation of the language and fill any gap left, either implicitly or explicitly, by 
Congress. Id. at 843-44. The rules of statutory construction dictate that we take into account the 
design of the statute as a whole. K Mart Corp. I). Cavtier, Inc., 486 U.S. 281,291 (1988). Moreover, 
the paramount index of congressional intent is the plain meaning of the words used in the statute 
taken as a whole. INS 11. Cavdozn-Fonseca, 480 U.S. 421, 43 1 (1987). The legislative purpose is 
presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 
183, 189 (1984). 
We must presume that the use of the word "private" in the statute is not superfluous and, thus, that it 
has some meaning. See FValtevs 11. Metro. Educ. Enters., 519 U.S. 202, 209 (1997); Bailey v. US., 
51 6 U.S. 137, 145 (1 995). Black's Law Dictionary 1213 (7th ed. 1999) defines "private" as "[rlelating 
or belonging to an individual, as opposed to zhe public or the government." (Emphasis added.) Thus, 
the director correctly concluded that a government agency cannot file a petition in the classification 
sought in this matter. 
On March 6, 2007, the director issued a notice of intent to deny (NOD), requesting evidence that the 
petitioner is "either a university or an institution of higher education, or a private employer as required 
under [section 203(b)(l)(B) of the Act]." In response, the petitioner submitted Internet materials about 
UT-Battelle, LLC, indicating that the company is "the legal entity responsible for leadin 
petitioner], as the Laboratory enters the 2 1 Century." Also included were materials about 
indicating that the petitioning facility wds established in 1943, while the Department of Energy which 
now funds the laboratory was not created until the 1970s. In addition, the petitioner submitted= 
contract with the Departn~ent of Energy. which provides that "shall use its best 
efforts to provide the necessary personnel, equipment, materials, supplies, and services (except as may 
be provided b the Government)." The petitioner also submitted Appendix A to the contract, which 
provides that he "shall select, manage, and direct its work force." Finally, the petitioner 
submitted state materials about confirming that it is registered with the State of Tennessee 
as an active non-profit, limited liability conlpany. 
The director accepted that UT-Battelle is a private employer, but concluded that the petitioner is not 
. - 
but On appeal, counsel asserts that ihe petitioner is 
funded by the Department of Energy, but is administered, managed, operated and staffed by 
Counsel explains that Federally Funded Research and Development Centers (FFRDCs) are 
organized as independe~~t entities "lo ensure the hi&est levels of objectivity." Counsel asserts that the 
filed and there was no room to specify that the petitioner was 
inanaged by 
 Counsel further notes that 
petitioner's support letteis and in documentation submitted in response to the NOID. 
was identified in counsel's cover letter accompanying the petition, on the letterhead stationary of the 
Page 5 
The petitioner submits the Department of Homeland Security Management Directives System's 2006 
report, Establishing or Contracting ~titjz Federally Funded Research and Development Centers 
(FFRDCs) and National Laboratories. Page 3 of the report provides that FFRDCs are "outside the 
government." The petitioner also submits the U.S. Department of Energy Efficiency and Renewable 
Energy Program Management Guide (December 2003), Appendix G-3, Role of National Laboratories, 
which provides that national laboratories are FFRDCs and further states that national laboratory 
employees are precluded from "performing inherently Governmental functions." 
The record satisfactorily establishes that 
 is the entity that manages the facility named as the 
petitioner. Significantly, the Federal Employment Identification Number (FEIN) listed on the petition 
as that of the petitioner is 
 Thus, we are satisfied that the petitioner and employer 
in this matter is a private, 
 and, therefore, the petitioner has overcome the sole 
ground for denial identified by the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has inet that burden. Accordingly, the appeal will be sustained and the 
petition will be approved. 
ORDER: 
 The appcal is sustained and the petition is approved.