Good news — this case cleared the first bar
The AAO withdrew the Director's denial and remanded the case because the Director only evaluated whether the job offer was for a tenured or tenure-track teaching position, failing to consider whether it qualified as a permanent research position under 8 C.F.R. § 204.5(i)(3)(iv)(B) or (C).
A university petitioned for an immunology and infectious disease researcher (HIV focus) under the EB-1B outstanding researcher classification. The Director denied the petition on the sole basis that the Beneficiary's Assistant Professor appointment was not tenured or tenure-track. The AAO found this was legal error because the regulations also allow qualifying offers for permanent research positions at universities or private employers. The AAO remanded for the Director to evaluate whether the job offer qualifies as a permanent research position under 8 C.F.R. § 204.5(i)(3)(iv)(B) or (C), and to also assess the six evidentiary criteria and conduct a final merits determination if warranted.
What worked: The petitioner successfully argued that the Director's analysis was incomplete—multiple letters documented the permanent nature of the employment, and the AAO agreed the evidence established the beneficiary is in a research role, triggering review under the permanent research position pathway.
What failed: The tenure-track pathway did not apply because the university's own appointment guidelines classified the Assistant Professor rank as a limited, non-continuous, non-tenured appointment. The Director's narrow focus on this pathway led to denial without considering alternatives.
Takeaway: For EB-1B petitions involving researchers at universities, petitioners should explicitly invoke the permanent research position pathway (8 C.F.R. § 204.5(i)(3)(iv)(B) or (C)) rather than relying solely on the tenured/tenure-track route, and should document the permanent nature of the position even if it is grant-funded or in renewable increments.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1B criteria.
● Evidence that moved the needle
- The petitioner successfully argued that the Director's analysis was incomplete—multiple letters documented the permanent nature of the employment, and the AAO agreed the evidence established the beneficiary is in a research role, triggering review under the permanent research position pathway.
● Evidence that wasn't enough alone
- The tenure-track pathway did not apply because the university's own appointment guidelines classified the Assistant Professor rank as a limited, non-continuous, non-tenured appointment
- The Director's narrow focus on this pathway led to denial without considering alternatives.
August 2022 letter from the Petitioner stating the Beneficiary was offered full-time permanent employment as a researcher
September 2022 letter from HR Operations Support Specialist confirming the employment was of indefinite/unlimited duration
October 2022 supervisor letter confirming permanent employment with expectation of continued employment in academic research
Preponderance of the evidence showing the Beneficiary is serving in a research position
Petitioner's School of Medicine Appointment, Promotion and Tenure Guidelines, which showed the Beneficiary's Assistant Professor rank was a limited, non-continuous (non-tenured) appointment
The Director only evaluated the job offer under 8 C.F.R. § 204.5(i)(3)(iv)(A) (tenured or tenure-track teaching position) and failed to consider whether it qualified as a permanent research position under subparts (B) or (C).
The NOID failed to afford the Petitioner an opportunity to address eligibility under sections 203(b)(1)(B)(iii)(II) or (III) of the Act.
Completed
I-140 filed
Assistant Professor and researcher specializing in HIV cure approaches and immunology, conducting in vivo studies in nonhuman primates
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-03-29
AAO decision — Remanded
The AAO withdrew the Director's denial and remanded the case because the Director only evaluated whether the job offer was for a tenured or tenure-track teaching position, failing to consider whether it qualified as a permanent research position under 8 C.F.R. § 204.5(i)(3)(iv)(B) or (C).
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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