dismissed EB-1B Case: Transportation Planning

U.S. Department of Homeland Security (A 
20 Mass. Ave., N.W., Rrn. A3042 ? 
Washington, DC 20529 
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FILE: Office: CALIFORNIA SERVICE CENTER Date: JAN 1 0 2006 
WAC 04 0 14 5 04.1 1 
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 1 153(b)(l)(B) 
I 
ON BEHALF,OF PETITIONER: 
., 
I This is the decision of the Administrative Appeals Office in your case. All documents have been returned to I the office that originally decided your case. Any further inquiry must be made to that office. 
I 
4 Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was detied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
! 
The petitioner is a city planning department. It seeks to classify the bkneficiay as an outstanding researcher 
pursuant to section 203(b)(l)(B) of the Immigration and Nationality ~4t (the Act), 8 U.S.C. 5 1153(b)(I)(B). 
The petitioner seeks to employ the beneficiary permanently in the United States as a "Transportation Planner 
II/Researcher." The director determined that the petitioner had not established that the beneficiary is recognized 
internationally as outstanding in his academic field, as required for classification as an outstanding researcher. 
The director further determined that the position offered was not a researAh position. 
I On appeal, the petitioner, through counsel, submitted a statement by the beneficiary. Subsequently, the 
petitioner submitted its own statement. We uphold the director's decision for the reasons discussed below. 
I 
Section 203(b) of the Act states, in pertinent part, that: j 
(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): i 
(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 aademic area, 
I (11) for a comparable position with a university or institution of higher 
education to conduct research in the area, or 
i I (111) for a comparable position to conduct research in the area with a I department, division, or institute of a private employer, if the 
I department, division, or institute employs at least1 3 persons full-time in I research activities and has achieved documented accomplishments in an 
academic field. 
The regulation at 8 C.F.R. fj 204.5(i)(3) states that a petition for an outst'anding professor or researcher must be 
accompanied by: 
I (ii) Evidence that the alien has at least three years of experience in teaching andlor research in I the academic field. Experience in teaching or research while working on an advanced degree 
Page 3 
will only be acceptable if the alien has acquired the degree, and if the teaching duties were such 
that he or she had'full responsibility for the class taught or if the research conducted toward the 
degree has been recognized within the academic field as outstanding. Evidence of teaching 
and/or research experience shall be in the form of letter(s) from former or current employer(s) 
and shall include the name, address, and title of the writer, and a specific description of the 
duties performed by the alien. 
This petition was filed on October 20, 2003 to classify the beneficiary as an outstanding researcher in the field 
of transportation planning. Therefore, the petitioner must establish that the beneficiary had at least three years 
of research experience in the field as of that date, and that the beneficiary's work has been recognized 
internationally within the field as outstanding. 
The regulation at 8 C.F.R. 5 204.5(i)(3)(i) states that a petition for an outstanding professor or researcher must 
be accompanied by "[elvidence that the professor or researcher is recognized internationally as outstanding in 
the academic field specified in the petition." The regulation lists six criteria, of which the petitioner must satisfy 
at least two. It is important to note here that the controlling purpose of the regulation is to establish international 
recognition, and any evidence submitted to meet these criteria must therefore be to some extent indicative of 
international recognition. On appeal, the beneficiary asserts that his Ph.D. alone should serve to meet three of 
the regulatory criteria. We note that a Ph.D. is not an unusual requirement for a professor position at an 
accredited university or institution of higher learning. Outstanding professors and researchers should stand 
apart in the academic community through eminence and distinction based on international recognition. The 
regulatory criteria are to be used in evaluating whether a professor or researcher is deemed outstanding. 56 
Fed. Reg. 30703, 30705 (1991). Thus, the mere possession of a Ph.D. cannot serve to establish eligibility for 
the classification sought. We will evaluate the remaining evidence below. 
The petitioner did not initially indicate which criteria the beneficiary is alleged to meet. The criteria follow. 
Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the 
academic field 
Initially, the petitioner submitted a letter from its Planning Director advising the beneficiary of his nomination 
and selection for a Team Excellence Award - General Plan Team. The director requested evidence of the 
origin, purpose, significance and scope of each award, as well as the criteria used to nominate and judge the 
prospective awardees. In response, counsel submitted evidence that the petitioner had nominated the beneficiary 
for an Employee Excellence Award. Counsel notes the employee award previously submitted and asserts that 
the award "is given to only one percent of all city employees." The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). None of the numerous 
letters from the petitioner's representatives affirm the percentage of employees who receive this award as 
claimed by counsel. 
The director concluded that the award and award nomination submitted were not major prizes or awards for 
outstanding achievement as they were not international or national, but limited to the petitioner's workers. 
Neither the petitioner nor the beneficiary challenges this conclusion on appeal, and we concur with the 
director's analysis. The petitioner has not established that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the academic jeld which require 
outstanding achievements of their members 
The petitioner initially submitted evidence of the beneficiary's membership in the Institute of Transportation 
Engineers (ITE), the American Planning Association, the Iranian Society of Transportation Engineers and the 
Institute of Highways and Transportation. The petitioner failed to submit evidence of the membership 
requirements for these associations. 
The director requested the membership requirements of the above associations. The petitioner's response did 
not address this criterion. The director concluded that the petitioner had not established that the beneficiary 
meets this criterion. Neither statement submitted on appeal addresses this criterion. We concur with the 
director's analysis. The petitioner has not established that the beneficiary is a member of an organization that 
requires outstanding achievements of its general membership. 
Published material in professional publications written by others about the alien's work in the 
academic jeld. Such material shall include the title, date, and author of the material, and any 
necessary translation 
As stated by the director, the petitioner did not assert that the beneficiary meets this criterion or submit evidence 
relating to it either initially or in response to the director's request for additional evidence. In his personal 
statement submitted on appeal, the beneficiary asserts for the first time that he meets this criterion through his 
Ph.D. thesis. Specifically, he notes that a Ph.D. thesis must be "a new research topic in the concern field and not 
repeating other works," "add to the knowledge of the field and "produce a referred publication." 
The beneficiary is not persuasive. His statement fails to explain how his own thesis, authored by him, 
constitutes published material written by others about his work in the academic field. The record contains no 
published materials about the beneficiary's work written by others. Thus, we affirm the director's conclusion 
that the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as the judge of the work of 
others in the same or an allied academicjeld 
The director concluded that the petitioner had not asserted that the beneficiary meets this criterion or submitted 
evidence relating to it. Neither the petitioner nor the beneficiary challenges this conclusion in their appellate 
statements. In addition, the documentation submitted on appeal does not address this criterion. Nevertheless, 
the initial submission included evidence that bears some discussion. 
The petitioner submitted a letter from an associate professor at the University of Manitoba. 
Professor ndicates that he obtained his Ph.D. from Birmingham University with the beneficiary and 
that the beneficiary subsequently joined Professor group at Tarbiat ~odaress' University in Iran. 
Professorasserts that the beneficiary taught postgraduate courses at Tarbiat Modaress University, 
where he supervised seven students at that university and an additional seven students at other institutions for 
their Masters projects. The petitioner also submits a thesis listing the beneficiary as the supervisor. 
I Spelling according to the beneficiary's curriculum vitae. 
The evidence submitted to meet each criterion must be indicative of or consistent with international acclaim. 
The beneficiary indicates that he was a lecturer at Tarbiat Modaress university. It is inherent to the position of 
lecturer to supervise one's students. We cannot conclude that every lecturer enjoys international recognition. 
Without additional evidence regarding the students at other institutions purportedly supervised by the 
beneficiary, we cannot conclude that these duties were indicative of or consistent with international recognition. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's original scientiJic or scholarly research contributions to the academicjeld. 
Initially, the petitioner submitted reference letters from its own staff, a former fellow Ph.D. student of the 
beneficiary's, a past president of the ITE who is currently a traffic engineer for the petitioner and a member of 
the group with which the beneficiary collaborated on his Ph.D. thesis. The director noted the lack of letters 
from more independent sources in his request for additional evidence. In response, the petitioner submitted 
another letter from its own staff and two letters from other professionals in the field in the same city. Counsel 
noted that one of the references characterizes the beneficiary's work as "original," that the work was the basis of 
a Ph.D. thesis and that the work was supported by the World Bank. 
The director concluded that the petitioner had not established that the international community considered the 
beneficiary's work especially significant. On appeal, the beneficiary asserts that work in his field is country- 
specific or regional. Thus, it is not applicable on an international level. He then asserts that his international 
experience is itself a contribution to the field. Finally, as stated above, the beneficiary asserts that his Ph.D. 
thesis alone serves to establish his eligibility since Ph.D. theses must be original. 
Contrary to the assertions made by counsel and the beneficiary, the petitioner cannot satisfy this criterion simply 
by listing the beneficiary's past projects, and demonstrating that the beneficiary's work was "original" in that it 
did not merely duplicate prior work. Transportation analysis and modeling work that is unoriginal would be 
unlikely to secure the beneficiary a master's degree, let alone classification as an outstanding researcher. 
Because the goal of the regulatory-criteria is to demonstrate that the beneficiary has won international 
recognition as an outstanding researcher, it stands to reason that the.beneficiary's contributions have won 
comparable recognition. To argue that all original scholarly work is, by definition, "outstanding" is to weaken 
that adjective beyond any useful meaning, and to presume that most scholarly work is "unoriginal." We will 
consider the letters with these principles in mind. 
The beneficiary obtained his Ph.D. from Birmingham University in the United Kingdom in 1990. He 
subsequently taught and worked in Iran before accepting a position with the petitioner in 2000. 
a coauthor of some of the beneficiary's articles while he was a Ph.D. student, asserts that the 
beneficiary "pioneered" the development of a software suite, BSM, to determine priorities for highway 
maintenance. While Mr. 
h 
raises the beneficiary's skills, he does not explain whether this project was 
applied by any entity or how it ot envise influenced the field. 
~rofesso~asserts that the beneficiary was a senior consultant for the city of-in Iran and that the 
beneficiary improved traffic in that city. In addition, the beneficiary presented work to the Road Ministry of 
Iran, which accepted his recommendations. Roads and other forms of transportation are developed and 
maintained by governments. It is inherent in the position of transportation consultant for a government entity to 
provide recommendations for transportation improvement to that government entity. We are not persuaded that 
every adopted transportation recommendation is a notable contribution to the field as a whole. 
The petitioner's staff praise the beneficiary's analytic abilities and knowledge in the field. They note his 
proficiency with the modeling software EMMEl2, customizing it to provide results for the petitioner's specific 
geographic needs. His skill with this software allowed him to determine the impact of various transportation 
improvements. The beneficiary has contributed to the petitioner's General Plan, including coordinating the 
input of other city departments and revising tables figures and photographs. The beneficiary took into 
consideration telecommunications, elderly mobility and parking. He also participated in sessions where the plan 
was explained to the public. The beneficiary also updated socioeconomic and trip generation data as it relates 
to street impact fees. A number of his suggestions for revising and improving the calculation of street impact 
fees were adopted. In addition, the beneficiary developed new guidelines for future traffic studies, resulting in 
consistent and quality products. Finally, the beneficiary researched the general plans of other U.S. cities, 
producing a satisfactory and valuable piece of work. 
, past president of the Arizona Planning Association, located in the same city as the petitioner, 
provides similar information and asserts that the beneficiary has contributed to the petitioner's long-term 
transportation plans. While Mrfurther asserts that the beneficiary has contributed to the planning 
profession in general, he provides no examples of such contributions. 
a traffic engineer with the petitioner and a former president of ITE, 
beneficiary to present his work with EMME12 to the 2002 ITE annual meeting. asserts that the 
beneficiary's presentation was "well-received" by those interested in the subject. Ms. 
beneficiary is "one of the most influential people in the transportation 
the field of transportation," but fails to examples of the beneficiary's influence beyond the specific 
projects on which he has worked. 
The above letters are all from the beneficiary's collaborators and immediate colleagues. While such letters 
are important in providing details about the petitioner's role in various projects, they cannot by themselves 
establish the petitioner's international recognition. The petitioner did not submit letters from independent 
experts in the field or evidence that the beneficiary is widely cited to support the opinions of the 
beneficiary's colleagues. 
The record shows that the petitioner is respected by his colleagues and has made useful contributions to the 
projects on which he has worked. It can be argued, however, that most modeling projects, in order to receive 
funding or be adopted, must present some benefit. The record does not establish that the beneficiary's work 
represented a groundbreaking advance in transportation planning. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international 
circulation) in the academicjeld. 
Initially, the petitioner submitted the beneficiary's unpublished Ph.D. thesis, an article of the same name 
published in 1991 in the European Journal of Operational Research, a program documenting his presentation at 
the Universities Transport Studies Group 22nd Annual Conference, an article in Dimensions of Rural 
Transportation, the proceedings of a 1988 "International Seminar," an unpublished article entitled "Guideline 
for Comprehensive Transportation Studies in Developing Countries" and a program reflecting that the 
beneficiary was a panel participant at a 2002 conference in Phoenix, Arizona. The record also includes the 
program for the 2002 annual meeting of the Institute of Transportation Engineers (ITE) in Philadelphia 
reflecting a presentation by the beneficiary, a foreign language journal with no translation, the 1992 publication 
"Mathematics in Transport Planning and Control" that includes a chapter by the beneficiary and the proceedings 
of a 1990 OECD Workshop on knowledge-based expert systems in transportation that includes a chapter by the 
beneficiary. 
The director requested evidence to establish the circulation of any journal that published the beneficiary's 
articles. In response, counsel states: 
The European Operational Research Journal is an internationally recognized and distributed 
monthly journal. The ITE journal is an annual summary which comes out of the ITE annual 
international conference. Also, the Oxford publication of the International Conference is a well 
respected annual publication. These journals cover international transportation issues, are 
distributed internationally and are read by and referred to by the experts in this field. 
The petitioner also submitted evidence that the beneficiary had submitted an abstract for a presentation at the 
2004 ITE annual meeting. The director concluded that the petitioner had not demonstrated the significance of 
the beneficiary's published work. On appeal, the beneficiary asserts: 
There is no signal publication used by every transportation practitioners [sic] and researchers 
[sic] in the world. There are many journals [that] discuss regional issues. Scientists and 
researchers in different countries tend to publish their own work in various journals with 
regional circulations. 
It is a well known requirement that for a PhD thesis to be approved is to produce a referred 
publication. European Operational Research is a referred journal, and that was the reason to 
approve my PhD thesis. 
This office is well aware that a Ph.D. must be original and that it is not unusual for one's thesis to be published, 
especially in fields of engineering and the sciences. As often stated by this office, the Association of American 
Universities' Committee on Postdoctoral Education, on page 5 of its Report and Recommendations, March 3 1, 
1998, set forth its recommended definition of a postdoctoral appointment. Among the factors included in this 
definition are the acknowledgement that "the appointment is viewed as preparatory for a full-time academic 
and/or research career," and that "the appointee has the freedom, and is expected, to publish the results of his or 
her research or scholarship during the period of the appointment." Thus, this national organization considers 
publication of one's work to be "expected," even among researchers who have not yet begun "a full-time 
academic and/or research career." 
The beneficiary's position that a Ph.D. thesis can serve to establish eligibility for this classification is not 
persuasive. We cannot conclude that every Ph.D. recipient enjoys international recognition. Rather, the 
expected publication of theses and postdoctoral work reinforces the director's position that publication of 
scholarly articles is not automatically evidence of international recognition. .This office consistently holds that 
we must consider the scientific community's reaction to those articles. 
As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. at I; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
The record lacks evidence supporting counsel's assertions that the above journals have an international 
circulation. Moreover, this office typically looks for evidence of an article's influence, such as evidence that 
the article has been widely cited. The record lacks evidence that any of the beneficiary's published work has 
been cited. 
In light of the above, we concur with the director that the petitioner has not established that the beneficiary 
meets this criterion. 
The petitioner has shown that the beneficiary is a talented and prolific researcher, who has won the respect of 
his collaborators, employers, and mentors, while securing some degree of international exposure for his work. 
The record, however, stops far short of elevating the beneficiary to an international reputation as an outstanding 
researcher or professor. Therefore, the petitioner has not established that the beneficiary is qualified for the 
benefit sought. 
Finally, the director concluded that the beneficiary's position as a transportation planner was not primarily a 
research position. On appeal, the beneficiary asserts that his research has formed the basis of four reports, 
which would not be possible if he were involved in "day-today [sic] affairs." The petitioner submits a list of job 
duties. While the duties provided by the petitioner use phrases such as "conducts research and leads the 
Planning Department" and "supervises and participates in multimodal transportation research and planning," the 
position appears to mainly involve compiling data, developing models, and applying those models to produce 
viable transportation plans and calculate street impact fees. We are not persuaded that these duties are primarily 
research duties. 
Beyond the decision of the director, the petitioner has not established that it is an eligible petitioner. As quoted 
above, section 203(b)(l)(B) of the Act, the alien must seek to work for a university, institution of higher 
education or a department, division, or institute of a private employer. The regulation at 8 C.F.R. 
$204.5(i)(3)(iii) mirrors the language in the Act. 
We must presume that the use of the word "private" in the statute is not superfluous and, thus, that it has 
some meaning. See Walters v. Metro. Educ. Enters., 5 19 U.S. 202, 209 (1997); Bailey v. US., 5 16 U.S. 137, 
145 (1995). Black's Law Dictionary 1213 (7'h ed. 1999) defines "private" as "[rlelating or belonging to an 
individual, as opposed to the public or the government." The petitioner is not a university, institute of higher 
learning, or a private employer, but a government agency. This interprktation does not preclude government 
agencies from filing petitions in behalf of researchers. For example, an agency may request that the job offer 
requirement be waived in the national interest for aliens of exceptional ability or advanced degree 
professionals pursuant to Section 203(b)(2) of the Act. The instant petition, however, does not seek that 
classification for the beneficiary and, pursuant to Matter of Katigbak, 14 I&N Dec. 45,'49 (Comm. 1971), 
may not be amended to do so. 
This interpretation is consistent with a proposed amendment to the above regulation that was never finalized. 
Specifically, the proposed rule at 60 Fed. Reg. 29771, 29775 (June 6, 1995) asserts that government agencies 
"should" be able to file petitions under this classification and proposes to add government agencies to the list of 
eligible employer. The fact that it was deemed necessary to propose an amendment to the regulation to allow 
state, local, or Federal government agencies to petition under this classification reinforces the position that the 
current regulation does not do so. We reiterate that this proposed amendment to add government agencies to the 
list of eligible employers was not implemented as a final rule. Accordingly, the petitioning entity is not an 
eligible petitioner in accordance with 8 C.F.R. tj 204.5(i)(3)(iii). Based on this additional reason, the petition 
may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center 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), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.