dismissed EB-2 Case: Medicine

PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
NOV 1 620n 
INRE: Petitioner: 
Benefic iary: 
V.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center (director), denied the employment-based 
immigrant visa petition and certified the decision to the Administrative Appeals Office (AAO). The 
director's decision to deny the petition will be withdrawn. However, the petition will be denied on 
different grounds. 
The petitioner is a university healthcare system. It seeks to permanently employ the beneficiary in 
the United States as a senior medical resident. The petitioner requests classification of the 
beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
The petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), certified by the U.S. Department of Labor (DOL). The priority 
date of the petition is November 30, 2007, which is the date the labor certification was accepted for 
processing by the DOL. See 8 C.F.R. § 204.5(d). 
The director denied the petition on September 8, 2008 and certified the decision to the AAO for 
review.' The decision concludes that the beneficiary does not possess an advanced degree. The 
, Certifications by regional service center directors may be made to the AAO "when a case involves 
an unusually complex or novel issue of law or fact." 8 C.F.R. § 103.4(a)(1). The regulation at 
8 C.F.R. § 103.4(a)( 4) states: "Initial decision. A case within the appellate jurisdiction of the 
Associate Commissioner, Examinations, or for which there is no appeal procedure may be certified 
only after an initial decision." The following subsection of that same regulation states as follows: 
"Certification to [AAOj. A case described in paragraph (a)(4) of this section may be certified to the 
[AAO]." 8 C.F.R. § 103.4(a)(5). 
The AAO's jurisdiction is limited to the authority specifically granted to it by the Secretary of the 
United States Department of Homeland Security. See DHS Delegation No. 0150.1 (effective March 
1, 2003); see also 8 C.F.R. § 2.1 (2005 ed.). Pursuant to that delegation, the AAO's jurisdiction is 
limited to those matters described at 8 c.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). 
See DHS Delegation Number 0150.I(U) supra; 8 C.F.R. § 103.3(a)(iv) (2005 ed.). 
The regulation at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28,2003) states: 
(iii) Appellate Authorities. In addition, the Associate Commissioner for 
Examinations exercises appellate jurisdiction over decisions on; 
(B) Petitions for immigrant visa classification based on employment or 
as a special immigrant or entrepreneur under Secs. 204.5 and 204.6 of 
this chapter except when the denial of the petition is based upon lack 
of a certification by the Secretary of Labor under section 212(a)(5)(A) 
of the Act; 
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AAO will also consider whether the position offered to the beneficiary constitutes permanent 
employment, and whether the petitioner currently intends to employ the beneficiary.2 
The AAO conducts review on a de novo basis. See Soltane v. DOl, 381 F.3d at 145. The AAO 
considers all pertinent evidence in the record, including new evidence properly submitted upon 
appeal or certification. 
Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding 
advanced degrees or aliens of exceptional ability, whose services are sought by an employer in the 
United States.3 
In order for the petition to be approved, the petitioner must establish that the beneficiary is a member 
of the professions holding an advanced degree. 8 C.F.R. § 204.5(k)(3). To show that the beneficiary 
holds an advanced degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
8 C.F.R. § 204.5(k)(3)(i). 
Pursuant to the delegation cited above, the AAO exercises the appellate jurisdiction formerly 
exercised by the Associate Commissioner for Examinations. 
In the instant case, the decision does not fall within the exception clause in subparagraph (B) in the 
regulation quoted above, which pertains only to a denial based upon a lack of a certification by the 
Secretary of Labor. The decision therefore is within the appellate jurisdiction of the AAO. 
Therefore, the certification of the denial decision is authorized by the regulation at 8 C.F.R. 
§ 103.4(a)(5). 
2 An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the director does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143,145 (3d Cir. 2004) 
(noting that the AAO conducts appellate review on a de novo basis). 
3 There is no evidence in the record that the beneficiary possesses exceptional ability in the sciences, 
arts or business. Accordingly, consideration of the petition will be limited to whether the beneficiary 
is eligible for classification as a member of the professions holding an advanced degree. 
-Page 4 
Part J of ETA Form 9089, signed by the beneficiary under penalty of perjury, states that the 
beneficiary obtained a medical degree in 2002 from M.G.R. Medical University. The record 
contains the· and transcripts for a Bachelor of Medicine and Bachelor of 
Surgery Medical University in Chennai, India.4 The record also 
contains a copy of the beneficiary's Educational Commission for Foreign Medical Graduates 
certificate, Score Reports demonstrating that the beneficiary passed Steps 1, 2 and 3 of the United 
States Medical Licensing Examination, a Graduate Medical Trainee medical license from the 
Commonwealth of Pennsylvania, and a letter from the petitioner confirming that the beneficiary 
completed twelve months of residency in the field of internal medicine. 
On certification, the petitioner submits an evaluation of the beneficiary's medical degree prepared by 
of Educational Assessment, Inc. The evaluation concludes that the beneficiary's 
medical degree "is fully equivalent to a U.S. Doctor of Medicine (MD) degree, a U.S. first 
professional advanced (above baccalaureate) degree in medicine, from a regionally accredited 
college or university in the United States."s 
The AAO also reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (AACRAO).6 According to 
4 The Medical University is a recognized state university by India's 
University Grants Commission. See http://www.ugc.ac.inlinside/State_ University _August20 11. pdf 
(last accessed September 2,2011). 
S U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Comm. 1988). However, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility. USCIS may evaluate the content 
of the letters as to whether they support the alien's eligibility. See id. at 795. USCIS may give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
6 In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the District 
Court in Minnesota determined that the AAO provided a rational explanation for its reliance on 
information provided by the AACRAO to support its decision. In Tisco Group, Inc. v. Napolitano, 
2010 WL 3464314 (E.D.Mich. August 30,2010), the Eastern District Court in Michigan found that 
USCIS had properly weighed the evaluations submitted and the information obtained from EDGE to 
conclude that the alien's three-year foreign "baccalaureate" and foreign "Master's" degree were 
comparable to a U.S. bachelor's degree. In Sunshine Rehab Services, Inc. 2010 WL 3325442 
(E.D.Mich. August 20,2010), the Eastern District Court in Michigan upheld a USCIS determination 
that the alien's three-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's 
degree. Specifically, the court concluded that USCIS was entitled to prefer the information in 
EDGE and did not abuse its discretion in reaching its conclusion. The court also noted that the labor 
Page 5 
its website, www.aacrao.org, AACRAO "is a nonprofit, voluntary, professional association of more 
than 11,000 higher education admissions and registration professionals who represent more than 
2,600 institutions and agencies in the United States and in over 40 countries around the world." 
According to its registration page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." http://aacraoedge.aacrao.org/registerlindex/php. Authors for EDGE are not 
merely expressing their personal opinions. Rather, they must work with a publication consultant and 
a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational 
Credentials.7 If placement recommendations are included, the Council Liaison works with the 
author to give feedback and the publication is subject to final review by the entire Council. Id. 
EDGE states that a Bachelor of Medicine/Bachelor of Surgery from India is awarded upon 
completion of four and a half to five and a half years of tertiary study plus one year of an internship, 
and "represents attainment of a level of education comparable to a first professional degree in 
medicine in the United States."g 
the beneficiary possesses a Bachelor of Medicine and Bachelor of Surgery from The 
Medical University in Chennai, India; the university is a recognized state 
university by India's University Grants Commission; the record contains an academic credentials 
evaluation concluding that the beneficiary's degree is fully equivalent to a degree in medicine from 
an accredited university in the United States; and EDGE confirms that a Bachelor of 
Medicine/Bachelor of Surgery from India represents attainment of a level of education comparable 
to a degree in medicine in the United States. 
Therefore, it is concluded that the beneficiary possesses the foreign equivalent of a United States 
advanced degree, and the director's decision on this issue is withdrawn. 
However, beyond the decision of the director, the petition cannot be approved because the position 
offered to the beneficiary does not constitute permanent employment, and because the petitioner has 
informed the AAO that it no longer intends to employ the beneficiary. 
The offered position is "Senior Medical Resident." Medical residency, also known as graduate 
medical education, is a stage of medical education and training following the completion of a 
medical degree. Medical residents receive training and supervision by fully licensed physicians. 
The petitioner's medical residency program is accredited by the Accreditation Council for Graduate 
certification itself required a degree and did not allow for the combination of education and 
expenence. 
7 See An Author's Guide to Creating AACRAO International Publications available at 
http://www .aacrao. org/pub lications/ guide_to _ creatin~international_publications. pdf (last accessed 
September 2, 2011). 
8 See http://aacraoedge.aacrao.org/credentialsAdvice. php?countryId=99&credentialID= 146 (last 
accessed September 2,2011). 
-Page 6 
Medical Education (ACGME).9 ACGME defines "residency" as a "program accredited to provide a 
structured educational experience designed to conform to the Program Requirements of a particular 
specialty."IO Completion of an ACGME-accredited residency training program precedes full 
licensure and board certification. 
According to the petitioner's website, its internal medicine residency is a three-year medical training 
program. II A "Senior Medical Resident" is a medical trainee who is in the second or third year of 
the residency program. Therefore, the offered position is limited to two years of graduate medical 
education in internal medicine.12 
Although a medical residency is an integral part of a physician's education and training, it also 
involves employment. The hybrid nature of a medical residency is underscored by the fact that a 
medical resident is potentially eligible for classification as a nonimmigrant worker in an H -1 B 
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Act and as a J-l exchange visitor 
for graduate medical education or training pursuant to section 101(a)(15)(J) of the Act. l3 
In Matter of Bronx Municipal Hospital, 12 I&N Dec. 768 (Reg. Comm'r 1968), the Regional 
Commissioner held that an offer of medical residency "is not primarily an offer of training within the 
meaning of section 101(a)(15)(H)(iii) of the Act, but on the contrary is essentially an offer of 
productive employment which ordinarily would be performed by a person living in the United 
States." 
Further, in 1995, the legacy Immigration and Naturalization Service (hereinafter "the Service") 
issued a final rule that confirmed the eligibility of medical residents for H-1B status by recognizing 
the employment nature of medical residency programs. See 60 Fed. Reg. 62021-23 (Dec. 4, 1995). 
The preamble to the final rule notes that the Service removed a provision in the proposed rule that 
would have prohibited medical residents from qualifying for H-1B classification. In describing the 
reversal of the Service's position, the preamble to the final regulation states: 
9 According to its website, ACGME is "responsible for the accreditation of post-MD medical 
training programs in the United States." http://www.acgme.org/acWebsitelhomelhome.asp (last 
accessed September 2,2011). 
10 http://www.acgme.org/acWebsite/about/ab_ACGMEglossary.pdf (last accessed September 2, 
2011). 
II http://www . uphs. upenn.edu/medicine/educationlresappinfo/prograrnlindex.html (last accessed 
September 2,2011). 
12 There is no possibility for a meaningful extension of the offered medical residency, although an 
internal medicine resident may have the option for a fourth year of residency as a chief resident. 
http://www.acgme.org/acWebsite/about/ab_ACGMEglossary.pdf (last accessed September 2,2011). 
13 The tension between the educational and employment nature of medical residency is further 
illustrated by the fact that medical residents and their employers have argued to the Internal Revenue 
Service that medical residents should be categorized as students as opposed to ordinary employees 
and therefore eligible for a FICA tax exception. See 
http://www.irs.gov/charities/article/0 .. id=219545.00.html (last accessed September 2,2011). 
Page 7 
In proposing this rule, the Service expressed its opinion that Congress did not 
intend the H-1B nonimmigrant classification to be used by graduates of foreign 
medical schools coming to the United States to pursue medical residencies or 
otherwise receive graduate medical education or training, and that, therefore, 
these aliens should seek classification as J-1 nonimmigrant aliens. This opinion 
was based on the Service's examination of the relevant legislation, including the 
Health Professionals Education Assistance Act of 1976 (HPEAA), Pub. L. 94-484 
and MTINA. The Service took note that the HPEAA established the J-1 
classification as the sole vehicle, with certain limited exceptions, for graduates of 
medical schools to obtain graduate medical education or training in the United 
States, including medical residencies. 
After a careful review of the comments received in response to the proposed rule 
and a further review of the relevant legislative history, the Service has opted to 
withdraw this portion of the proposed rule. 
The Service [will] continue its current practice of allowing graduates of foreign 
medical schools to take residencies under the H-1B classification. In so doing, the 
Service notes first that nothing in the statute or the relevant legislative history 
specifically precludes H-1B classification for aliens seeking graduate medical 
training, and second, under the language of section 214(i) of the Act, a graduate 
medical education program, such as a residency, could in some cases meet the 
definition of "specialty occupation" for H-1B purposes. See also 8 CFR 
214.2(h)(4)(i). In addition, we note, as did some commenters, that a medical 
residency can reasonably be considered to be either a training program or a 
specialty occupation. This position is consistent with that taken by the Service in 
Matter of Bronx Municipal Hospital Center, 12 I&N Dec. 768 (1968), where the 
Regional Commissioner held that a medical residency is primarily clinical m 
nature and, therefore, does not qualify as an H-3 training program. 
Therefore, a medical residency position involves a combination of education, trammg and 
employment. However, the issue in the instant case is not whether or not a medical resident engages 
in employment. Instead, at issue is whether or not an offer of employment as a medical resident can 
be the basis of an employment-based immigrant visa petition. 
Section 101(a)(3) of the Act defines "alien" as "any person not a citizen or national of the United 
States." Section 101(a)(15) of the Act defines "immigrant" as "every alien except an alien who is 
within one of the following classes of nonimmigrant aliens." 
Section 203(b) of the Act provides for the allocation of immigrant visas to employment-based 
immigrants. The regulation at 8 C.F.R. § 204.5(c) states that any "United States employer desiring 
-Page 8 
and intending to employ an alien may file a petition for classification of the alien under section 
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act." 
In the instant case, the petitioner has requested classification of the beneficiary as a qualified 
immigrant who is a member of the professions holding an advanced degree pursuant to section 
203(b )(2)(A) of the Act. Petitions for the requested classification must be accompanied by an offer 
of employment. See 8 C.F.R. § 204.5(k). 
A lawful permanent resident is accorded the privilege of residing permanently in the United States. 
Section 101(a)(20) of the Act. It follows that the offered p,0sition underpinning an employment­
based immigrant visa petition be for permanent employment. 4 Black's Law Dictionary 605 (9th Ed. 
2009) defines "permanent employment" as "[w]ork that, under contract, is to continue indefinitely 
until either party wishes to terminate it for some legitimate reason." 
Section 204(b) of the Act states: 
After an investigation of the facts in each case, and after consultation with the 
Secretary of Labor with respect to petitions to accord a status under section 
203(b)(2) or 203(b)(3), the [Secretary of Homeland Security] shall, if [s]he 
determines that the facts stated in the petition are true and that the alien in behalf 
of whom the petition is made is an immediate relative specified in section 201(b) 
or is eligible for preference under subsection (a) or (b) of section 203, approve the 
petition and forward one copy thereof to the Department of State. The Secretary 
of State shall then authorize the consular officer concerned to grant the preference 
status. 
Therefore, if USCIS determines that the facts that were provided in the petition are not true (e.g., 
that the job offered in the labor certification is not permanent), then USCIS will not approve the 
petition. 
14 This requirement is mirrored in the DOL regulations and administrative case law. The permanent 
labor certification program supports the filing of visa petitions allowing immigrants to engage in 
"permanent" employment within the United States. 20 C.F.R. §§ 656.1(a); 656.1O(c)(10). The 
regulations for permanent labor certifications at 20 C.F.R. § 656.3 define "employment" as 
"[p]ermanent, full-time work by an employee for an employer other than oneself." "The employer 
bears the burden of proving that a position is permanent and full-time. If the employer's own 
evidence does not show that a position is permanent and full-time, certification [by the DOL] may be 
denied." In the Matter of Professional Staffing Services of America, 2004-INA-00007 (BALCA 
March 7, 2005)(citing Gerata Systems America, Inc., 88-INA-344 (BALCA Dec. 16, 1988)). 
Permanent employment is employment that continues indefinitely until a party wishes to terminate 
it. In the Matter of Professional Staffing Services of America, 2007-INA-00012 (BALCA June 5, 
2008). 
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In Matter of M-S-H-, 8 I&N Dec. 460 (Reg. Comm'r 1959), the Regional Commissioner held that a 
one-year medical intern position did not qualify for classification for nonimmigrant status under 
section 101(a)(15)(H)(i) of the Act because the petitioner had a permanent need for the services 
provided by medical interns. In the decision, the Regional Commissioner states: 
The petitioner's counsel states that "The situation of an intern is of necessity a 
temporary one since, after a period of internship, they are no longer interns but 
must graduate into the position of Residents following a program of residence." 
This is unquestionably true insofar as a particular intern is concerned. However, 
when an intern completes his internship and moves into a residency or private 
practice, the work he did as an intern must still be done by someone. In this sense 
the position is of a permanent rather than a temporary nature. 
[d. at 461. (Emphasis added). 
At the time of the Regional Commissioner's decision, in order to obtain H-1B classification, both the 
offer of employment and the employer's need for the labor had to be temporary. Although this is no 
longer the case for H-IB classification, it remains true for H-2A and H-2B classification. 
Specifically, for H-2A classification, the regulation at 8 C.F.R. § 214.2(h)(5) states: 
(iv) Temporary and seasonal employment 
(A) Eligibility requirements. An H-2A petitioner must establish that the 
employment proposed in the certification is of a temporary or seasonal 
nature. Employment is of a seasonal nature where it is tied to a certain 
time of year by an event or pattern, such as a short annual growing cycle 
or a specific aspect of a longer cycle, and requires labor levels far above 
those necessary for ongoing operations. Employment is of a temporary 
nature where the employer's need to fill the position with a temporary 
worker will, except in extra ordinary circumstances, last no longer than 
one year. 
For H-2B classification, the regulation at 8 C.F.R. § 214.2(h)(ii) states: 
(B) Nature of petitioner's need. Employment is of a temporary nature when the 
employer needs a worker for a limited period of time. The employer must 
establish that the need for the employee will end in the near, definable future. 
Generally, that period of time will be limited to one year or less, but in the case of 
a one-time event could last up to 3 years. The petitioner's need for the services or 
labor shall be a one-time occurrence, a seasonal need, a peak load need, or an 
intermittent need. 
(Emphasis added). 
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The Regional Commissioner in Matter of M-S-H- concludes that the petitioner's need for the labor 
performed by medical interns is permanent, thus disqualifying the position for the requested 
nonimmigrant visa. Again, this is because the law at that time required both the job offer and the 
employer's need for the labor to be temporary. The Regional Commissioner does not address 
whether, in the employment-based immigrant visa petition context, a medical resident position can 
constitute a permanent offer of employment. This is a crucial distinction. The fact that an 
employer's need is permanent does not mean that the offered position is permanent. It does not 
follow that an offered position is permanent in the context of an employment-based immigrant visa 
petition just because the petitioner's need for the services is permanent. If that were the case, then it 
would be theoretically possible for a one week offer of employment to serve as the basis of an 
employment-based immigrant visa. This would be an absurd result. 
Instead, in the employment-based immigrant visa context, both the offered position and the 
petitioner's need for the labor must be permanent. 15 
As is explained above, medical residents are potentially eligible for two nonimmigrant 
classifications: H-IB and J-1. Although USCIS has followed a policy of permitting "dual intent" in 
the H-IB classification, J-l status cannot be granted to an intending immigrant. The fact that 
medical residents are eligible for J -1 classification is predicated on the fact that a medical residency 
is a temporary position and not permanent. 
It is acknowledged that the petitioner has a permanent need for the services provided by medical 
residents. However, this is not sufficient to establish that the offered position constitutes permanent 
employment, which is necessary for the approval of an employment-based immigrant visa petition. 
In summary, the petitioner is sponsoring the beneficiary for lawful permanent residence based on an 
offer of permanent employment. A lawful permanent resident is accorded the privilege of residing 
permanently in the United States. Medical residency is a combination of employment and graduate 
15 Regarding the requirement that the employer's need be permanent in the immigrant visa petition 
context, the regulations for skilled workers and other workers specify that the offered employment 
cannot be temporary or seasonal. Although the regulations for the requested employment-based 
category at 8 C.P.R. 204.S(k)(2) do not contain a similar provision, this does not mean that a 
temporary or seasonal offer of employment can be the basis of a second preference employment­
based immigrant petition. For example, page 48 of the 1990 U.S.C.C.A.N 6710 House Report 1001-
723, for the Family Unity and Employment Opportunity Immigration Act of 1990 [IMMACT 90], 
P.L. 101-649 states: 
All other aliens for whom employers seek immigrant visas must be entering for 
the purpose of meeting a shortage of employable and willing U.S. workers in 
specified labor that is not temporary or seasonal in nature. 
Therefore, in the instant case, the employer's need for the labor cannot be temporary or seasonal in 
nature. 
Page 11 
medical education. The position offered to the beneficiary is limited to a specific, finite and short 
period of time without the possibility of extension. Therefore, the offered position does not 
constitute an offer of permanent employment. 
In addition, during the adjudication of the appeal, the AAO determined that it did not appear that the 
petitioner still intended to employ the beneficiary in the offered position. The evidence in the record 
indicates that the job offered to the beneficiary had a start date of July 1, 2007 and an end date of 
June 30, 2009. 
The beneficiary has completed his board certification in internal medicine 16 and is licensed to 
practice medicine in Minnesota. 17 The Minnesota licensing agency states that the beneficiary's 
specialty is Rheumatology and his employment address is Id. According 
to USCIS records, the beneficiary has been sponsored for H-1B employment by an employer in 
Minnesota. Also, according to USCIS records, the beneficiary has been issued conditional 
permanent residence based on his marriage to a U.S. citizen. 
Therefore, it did not appear that the petitioner currently intends to employ the beneficiary in the 
position of "Senior Medical Resident." In order for the petition to be approved, the petitioner must 
maintain a continuing intent to permanently employ the beneficiary in the offered position. Where 
no legitimate job offer exists for the offered position, the request that a foreign worker be allowed to 
fill the offered position has become moot, and the petition must be denied. 
Accordingly, on February 22, 2011, the AAO issued a Notice of Derogatory Information, Request 
for Evidence and Notice of Intent to Deny (hereinafter, "NOID"). The NOID states that, if the 
petitioner still intended to permanently employ the beneficiary as a "Senior Medical Resident," it 
must provide an affidavit of an officer of the hospital confirming that this is the case. The NOlO 
also asked the petitioner to explain how it is possible for an individual who has already completed an 
internal medicine residency and is board certified in internal medicine can serve as a "Senior 
Medical Resident." 
The NOID also requested an affidavit from the beneficiary confirming his intent to be permanently 
employed in the position of "Senior Medical Resident" by the petitioner upon the issuance of his 
lawful permanent residence. 
Finally, the NOID informed the petitioner that the AAO intended to dismiss its appeal because the 
offered position of "Senior Medical Resident" does not constitute an offer of permanent 
employment. 
Counsel responded to the NOID in a letter dated March 14, 2011. The letter states that "the 
Petitioner no longer intends to employ the Beneficiary in the previously offered position." The letter 
further states "given such changed intentions, the Petitioner is not submitting additional evidence 
16 http://www.abim.org/services/verify-a-physician.aspx (last accessed September 2,2011). 
17 https:llwww.hlb.state.mn.us (last accessed September 2,2011). 
· . 
Page 12 
and respectfully requests that the instant appeal be dismissed." Counsel did not request that the 
matter be withdrawn. 
Therefore, for the reasons set forth above, director's decision denying the petition is withdrawn. 
However, the petition is denied because the petitioner no longer intends to employ the beneficiary, 
and because the offered position does not constitute permanent employment. 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. See 8 c.F.R. § 103.2(b)(14). 
A petition that fails to comply with the technical requirements of the law may be denied by the AAO 
even if the director does not identify all of the grounds for denial in the initial decision. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043; see also Soltane v. DOl, 381 F.3d at 145. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a 
plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 
F. Supp. 2d at 1043. 
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 not met that burden. 
ORDER: The director's decision is withdrawn. The petition is denied.