dismissed EB-2 NIW Case: Traffic Engineering

(b)(6)
U.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 
DATE: APR 0 8 2013 OFFICE: TEXA~ SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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 .lJ.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 t~ that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considere9, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form. I-290B, Notice of _Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
. nw.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the 
appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and National.ity Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as a traffic engineer for the City of Texas. The petitioner asserts that an 
exemption from therequirement of a job offer, and thus of a labor certification, is in the national interest 
ofthe United States. The director found that thepetitioner qualifies for classification as a member of 
· the professions holding an advanced degree, but that the petitioner has not established that an exemption 
from the requirement of a job offer would be in the national interest ofthe United States. 
On appeal, the petitioner submits his own statement and a brief from counsel. 
Section 203(b) ofthe Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advance:d Degrees or Aliens of 
Exceptional Ability. -
(A) In General. -Visas shall. be made available ... to qualified immigrants who are 
members of the .,professions holding advanced degrees or their equivalent or who 
because of their' exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the Umted States. 
(B) WaiverofJob Offer-· 
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. , 
The petitioner claims eligibility for classification as an alien ofexceptional ability in the sciences, 
the arts or business. The record readily establishes -that the petitioner, whose occupation requires at 
least a bachelor's degree and who holds a post-baccalaureate degree, qualifies as a member of the 
professions holding an advanced degree. See 8 C.F.R. § 204.5(k)(3)(i). A det~ation regarding 
the petitioner's claim of exceptional ability would be moot; an additional finding of exceptional 
ability would not establish eligibility for the national interest waiver. The sole issue in contention is 
whether the petitioner has established that a waiver of the job offer requirement, and thus a labor 
certification, is in the national interest. 
Neither the statute nor the pertinent regulations define· the term ''national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
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Judiciary merely noted· in its report to the Senate that the 
committee had "focused on national interest by 
increasing the number anq proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). . 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application ofthis test as flexible as possible, .although clearly 
an alien seeking to meet the [national interest] standard must make a .showing 
significantly above that necessary to prove the ''prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver ot: the job offer will be in the 
national interest. Each case is to be judged on its own merits. · 
In reNew York State Dept. of Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several faCtors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on. prospective national benefit, the petitioner must establish 
·that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien wil~ in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contnbutions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be ent~ely speculative. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
. aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, a given alien cannot qualify for 
a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered 
in his or her field of expertise. 
The petitioner filed the Form I -J 40. petition on December 23, 2011. On Part K of the accompanying 
ETA Form 9089 Application for Permanent Employment Certification, the petitioner described his 
duties in his current position: 
Duties consist of receiving citizen requests regarding traffic issues, determining the 
use and placement of traffic control devices, and evaluating traffic data and applying 
proper engineering principles and practices which result in the development of signal 
timing and implementation plans, and performing traffic engineering studies. 
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Address concerns and· resolved a variety of engineering requests from the City 
Council and citizens. 
In a statement submitted with the petition, counsel stated: 
While the B(meficiary's employment may be limited to a particular geographic area, 
the City of _ and the roads and bridges of the City are·connected to the State 
and to the national transportation system. The safety, operation and maintenance of 
the traffic patterns of the City serve the interests of other regions of the country. 
Sometimes, the impact in a local situation could have a national bearing. For 
instance, Beneficiary works with · the and m 
managing their pre and post.-game traffic. Iri fact, Beneficiary was involved with 
planning traffic management for the -an event watched by millions of 
fans all over the U.S. 
"Millions of fans" surely watch the each year, including in when it took place in 
but the overwhelming ·majority of those fans watched on television and were thus 
unaffected by the city's traffic arrangements relating to the event. A major event such as the 
involves temporary commitments by many industries, such as food service, utilities, law 
enforcement, hospitality and ·sanitation. The number of industries and professions involved, in 
conjunction with the relative infrequency with which any one city hosts such an event, does not 
make a strong case for linking permanent immigration benefits to such events. 
Counsel continued: 
For the past 6 years, the City of and the State of Texas have invested 
heavily in Benefidary's education, train~g, advancement and expertise. The position 
for which Beneficiary was hired by the City of TX was vacant for a period 
of two years. No able, willing, and qualified U.S. employees were available to fill the 
vacancy. . 
. . Beneficiary is a 'key' employee of. the City. . . . Through his 
involvement with City planning and management. Beneficiarv has been involved with 
Super Bowl planning, City events planning and and _ 
stadia traffic planning. . . 
. . It . is respectfully submitted that with limited resources, 
budget constraints and political·polarization, it would be extremely difficult for the 
City to find a replacement for Beneficiary through the Labor Certification process. · 
In the passage quoted below, NYSDOTaddressed this issue: 
[USCIS] ·does not dispute that the beneficiary provides valuable services to his 
employer; at issue here is the effect of such services on the national interest when 
compared to others in the profession. [USCIS] also does not dispute the advantage to 
the petitioner of retaining qualified staff rather than training inexperienced, newly 
hired workers. The contention that no other experienced workers are available, . 
however, should be tested on an application for a labor certification. 
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/d. at 222. The labor certification process exists precisely for the purpose of proving an employer's 
claim that no qualified United States worker seeks a·given position. Therefore, the assertion that no 
qualified replacement is available is ·not a viable basis for granting the waiver. 
The remainder of counsel's introductory statement consists of quotations from witness letters, to be 
considered below. The petitioner is studying for a doctorate at the where he 
previously earned a master's degree. During the course of his studies, the petitioner had produced a 
master's thesis and papers for presentation at various professional gatherings. Dissemination of 
research in this way lends national scope to the petitioner's work, by making it available to other 
researchers. The petitioner, however, has not shown that preparation of such papers would be a 
consistent part of his work at a traffic engineer for the City of as opposed to a function of 
his inherently temporary graduate studies at the The petitioner will not 
.permanently be a student, and therefore permanent immigration benefits cannot hinge on activities 
that the petitioner will undertake only as a student. 
Three of the witnesses are current employees or officials of the City of 
interim director of Public Works, affirmed that the petitioner's position ''took more than 
two years to fill, and the investment the City has made in training [the petitioner] is significant." 
added that the petitioner "has a unique skill set that can be applied anywhere in the country-
notjust in Texas." . 
_ . engineering operations manager, stated that the petitioner "is exceptional in his 
contributions, dedicated in its [sic] execution and conscientiouS about following up and ensuring the 
success of the projects with which he has been e_ntrusted." asserted that the 
petitioner's ''job duties involve a high degree of complexity that cannot be performed by a recent 
college graduate .... It would be extremely difficult to hire soineone with the education, training and 
experience that [the petitioner] has without incurring considerable expense and possibly waiting 
several months,· or years." 
city traffic engineer and the petitioner's immediate supervisor, stated: "The City is 
not currently sponsoring immigrant petitions and that is the reason [the petitioner] is petitioning on 
his own." As noted previously, the classification"the petitioner s.eeks normally requires a job offer. 
Labor certification is an integral element of the job offer requirement. The employer cannot 
unilaterally exempt its prospective employees from that requirement by refusing to participate in the 
labor certification process. Nothing in the legislative history suggests that the national interest 
waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the 
inconvenience of the labor certification process. NYSDOT, 22 I&N Dec. 223. 
Some of the petitioner's initial letters are from faculty members. _ 
stated that, due to the difficulty of replacing him, ''the likelihood of[the petitioner] staying 
in his current position is clearly very high." also asserted that "as part of his Ph.D. 
program, [the petitioner] will be engaged in cutting edge research." As noted previously, the 
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petitioner's doctoral studies are inherently temporary, and a nonimmigrant classification exists to 
permit graduate study. · 
discussed the petitioner's research activities in very general 
terms. Rather than claiming any direct knowledge of these activities repeatedly used the 
phrase "I am given to understand ... " to preface her assertions. · 
associate professor at stated that the petitioner received two 
scholarships in 2005, the recipients for which "are selected carefully arid after a thorough review 
process. Being a recipient of the scholarship is a high honor and clearly represents the exceptional 
nature of a student's academic achievement and future potential." stated that the 
petitioner's duties with 
the. City of _ "require an exceptional level ofexpertise. The event 
organizers would not entrust [the petitioner] with these duties if they did not think he was expertly 
capable of rendering these services." · 
Other letters are from traffic engineers and officials with related functions. director 
ofLogistics and Planning for ' stated: 
stated: 
I have worked ·with [the petitioner] 'in traffic management··and preparation for the 
Stadium events here in _ . Texas for several years. As part of our 
collaboration, [the petitioner] has performed criticalwork assignments in the planning 
and implementation process that requires an exception~llevel of expertise .... 
[H]is expertise in the analysis of the City's traffic patterns, congestion and traffic 
signals has been extremely valuable in meeting our planning goals. These goals are 
important to our needs and the needs ofthe community we serve. 
1:11anaging director of Event· Operations for 
What makes [the petitioner's] job exceptional is that he constantly has to use his 
advanced education .. and training (normally at a Master's level) in Urban 
Transportation Planning, Traffic Operations, Traffic Characteristics, Highway 
Design, etc. to perform the job duties of the position. 
did not explain how those duties make 'the petitioner's 'job exceptional" when compared 
to that of other traffic engineers in large Cities. added that "the City of _ has tried · 
to recruit qualified professionals for this and other positions in the transportation department. 
However, these positions have been extremely hard to fill and a similar position within· the 
department continues to remain open." 
director of Transportation Services for the City of , Texas,. worked 
with the petitioner on the and on "a regional signal timing project." In language nearly· 
identical to letter, repeated the assertion that the petitioner's 
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"responsibilities require an exceptional level of expertise. _ would not have entrusted {the 
petitioner] with these duties ifthey did not believe he was capable of rendering these services." The 
issue is not whether the petitioner is capable of performing his assigned duties. Rather, the issue is 
whether it is in the national interest to waive the job offer requirement and ensure that the petitioner, 
rather than a qualified United States worker, remains in the petitioner's current position. (Applying 
for a labor certification does not mandate the petitioner's replacement, particularly if, as claimed, no 
qualified United States workers seek the job.) 
I ' 
director of Public Works for the City of Texas and former director of 
Public Works and Transportation for the City of discussed the important role that traffic 
engineers play. These assertions speak to the intrinsic merit of the occupation, which is not in 
dispute in this proceeding. . _ then made two assertions somewhat at odds with one another, 
first stating that the petitioner's skills are "all the more important" in ''because it has no 
public transportation," and then asserting that the petitioner "has a unique skill set that can be 
applied anywhere in the country- not just in _ Texas" (thus repeating, word for word, the 
assertion in letter). then repeated the assertion that the petitioner's 
position is difficult to fill. 
of the South District _ Police Department was regional chair of the 
Planning Committee. stated: "[the petitioner] was involved intensely in all 
aspects of the planning process with my department and his input and suggestions were invaluable." 
stated: 
senior program manager for 
, has "also served as an adjunct professor at 
and serves on the Civil and Environmental Engineering Advisory Council there. 
I have known [the petitioner] for over six years, since he was hired by the 
as an 
intern in 2005 ..... His duties included preparing data for use in a highly complex 
travel demand forecasting model used by to develop the metropolitan 
transportation plan, perform traffic studies, and prioritize major infrastructure 
improvements for funding. When his internship ended, he was hired as a full time 
employee of His duties and responsibilities increased and he was 
responsible for performing detailed transportation and traffic studi~s utilizing the 
same travel demand forecasting model. The model is highly complex, incorporati,ng 
advanced traffic engineering principles, traffic flow theory, and advanced statistical 
analysis procedures. 
. ' 
I was [the petitioner's] Senior Program Manager and as such was responsible· for 
providing him with work assignments, general direction and reviewed his work from 
time to time. I found [the petitioner] to be detail oriented, accurate in his assignments 
and quick to grasp new principles. He was able to effectively combine his 
engineering background-within a planning environment, filling a niche between the 
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two professions and providing a unique viewpoint to issues at hand. I believe [the 
petitioner] is an exceptional talent and has skills that are not easily found. 
repeated the assertion that the petitioner should receive a waiver because he would be 
difficult to rej>lace. · · · 
another senior program manager at stated: ''The job duties ofthe position 
and [the petitioner's] qualifications are clearly exceptional and it would be hard to replace him" 
a research associate at the , Austin, previously worked with 
the petitioner at asserted that "the level ofknowledge, expertise and experience 
required 
[for the petitioner's ·position] is certainly 'exceptional,' if not extraordinary," and that the petitioner 
has earned ''valuable experience that cannot be replaced easily.'.' 
of _ _ Mesquite, Texas, stated that the petitioner performs 
"highly complex duties involving a very high level of expertise in the field of Traffic Engineering. 
These duties cannot be performe4 by someone right out of college, or without an advanced degree." 
_ supervising engineer for Public Works and Engineering for the City of 
Texas, stated that the petitioner's ''duties ... require considerable education ... and at least 5+ years 
of experience," and that ''positions of this nature are very hard to fill." 
The director issued a request for evidence on May 29, 2012, stating: ''The petitioner must establish 
that the beneficiary has a 
past record of specific prior achievement with some degree of influence on 
the field as a whole." The director noted that the petitioner's initial submission did not show that 
others have relied on the petitioner's work. The director also stated that the petitioner had not shown 
that his involvement with traffic planning for football games lends his work national scope. 
In response, counsel asserted that the benefit arising from the petitioner's work is national in scope 
because ''roads and bridges ... are connected to the State and to the national highway 
system." Counsel then provided information about the and its 
. Finally, counsel stated that the petitioner's master's thesis ''was 
later turned into a semester course at the graduate level and taught at the Master's level for severa_l 
years after [the petitioner] had graduated." 
Of the three lines of reasoning presented, the information regarding the . is the least persuasive. 
That . _ happened to host while the petitioner worked there is a 
matter of coincidence rather than an endorsement of the. petition, and the petitioner has not shown 
that the petitioner's speCific role has a nationally significant effect on the or its audience. With 
respect to in , counsel stated that the petitioner's "contributions to this event 
are self-evident from the several letters provided in the initial submission." Counsel then identified 
eight of the initial witnesses. Most of those witnesses stated that the petitioner served on the ''traffic 
committee" for the A • The most detailed statement is assertion that 
the petitioner "improved and expedited traffic flow through preparation and implementation of 
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traffic control and operations plans for special events, including _ One ofthe 
named witnesses, l did not mention the _ at all in his letter. The nature and 
extent of the petitioner's contribution to this one-time event is not, as counsel claimed, "self-evident" 
from the cited letters. 
In a new letter, addressed the petitioner's involvement with 
[T]he Service has misread the responsibilities of [the petitioner's] position and 
mischaracterized it as just being that of a traffic en2ineer managing pre and post­
game traffic for the and Nothing cail be further from 
the truth .... 
I am particularly disappointed that the Service has made no mention of the pivotal 
role played by·[the petitioner] in being· part of the planning committee {Transportation 
Action Team) for the 
0 
stated that the director "mischaracterized" the petitioner's responsibilities, but his second 
letter, like his first, 
shed little light on what those responsibilities were. provided 
statistics about buses, vehicle lane usage, and parking, and stated: "Planning included logistics, and 
safety for vehicular, rail and air transportation and the Transportation Action Team comprised of150 
professionals from several local and national institutions." Still unclear, however, is the nature of 
.the petitioner's role in the project and how that role is national in scope. asserted that 
planners for future _ s can benefit from lessons learned during earlier events, and stated: 
''This is best illustrated by the ·establishment of the m 
as a result of then changed the subject, saying nothing 
more about the and instead stating that the petitioner ''was the engineer in charge [of] 
the citywide 200 miles of the fiber optic network that includes 12 miles ofTxDOT fiber backbone." 
Another repeat witness is who stated that the pet.itioner ''was actively involved in 
high level planning" of''the firs~· ever _ hosted by " 
stated: ''The future of North ·Texas Transportation for decades to come will be based on the 
· pioneering work of the Transportation J\ction Team of the _ '' He did not elaborate 
except for the general statement that ''the planning committee had to provide for legacy systems 
which would ensure future· development of transportation options in the North Texas area." The 
Transportation Action Team, according to consisted of 150 members. 
did not explain the petitioner's role within that large group, and he did not show that the petitioner 
stood out from others in that group. 
With respect to the petitioner's master's thesis, counsel cited a letter from 
associate professor at to support the claim that the thesis "was later turned into a semester 
course." letter, however, does not support that claim. Rather, stated: "For 
·several years following this research, I assigned a ·semester project to my class in 'Transportation 
and Air Quality' based on [the petitioner's] thesis." Thus, the thesis was the basis for "a semester 
project" in an existing class, rather than the basis for the entire course as counsel claimed. 
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provided general information about air pollution and stated: "A system for forecasting air 
quality cannot~ by itself, solve the problems [caused by pollution]. Forecasts ... can however play 
an important ·role as part of an air· quality management system working in concert with more 
traditional emissions-based approaches." did not indicate that any forecasting system 
based on the petitioner's models currently exists. Instead, she stated: ''Using modeling techniques 
.like the one used in [the petitioner's] research would be ofvital importance and if properly used and 
implemented could improve the health and lives of U.S. citizens nationally." 
stated: 
I understand that in the years following [the petitioner's] research, 
used his Master's Thesis to teach a semester project in ''Transportation and Air 
Quality." [The petitioner's] past work on the subject has helped researchers 
understand and train in a critical area. It is highly likely that the University will 
continue to use this research to nurture future engineers in the. field. 
The last quoted sentence· is, by nature speculative. herself did not claim that she 
continues to use the petitioner's work today. Rather,· she stated in the past tense that she did so 
"[ f]or several years." 
The AAO has already noted similarities between variouS witness letters. The letter from 
indicated that the petitioner researched 
,) 
scenarios that could. potentially affect human health .. To his credit, he analyzed 
meteorological data over a ten-year period in search of the absolute· worst case 
scenario. This data was then combined with traffic characteristics to estimate 
pollutant concentration estimated from the· source using CALINE4 modeling. The 
results were th~n processed using computer moqeling software (ArcGIS) to create 2D 
and 3D dispersion maps. 
Almost exactly the same passage appeared in letter, the only difference being that the· 
phrase "pollutant concentration estimated from the source" was shortened in letter to 
"pollutant concentrations source." also stated that the recipients of the petitioner's 
schola.rShip "are selected carefully and after a thorough review process. Being a recipient of the 
scholarship is a high honor and clearly represents the exceptional nature of a: student's academic. 
achievement and future potential." This passage exactly mirrors language from 
earlier letter. The pervasive use of shared language raises seriotis questions about who actually 
wrote the witness letters.- The similarities suggest common authorship. Cf Surinder Singh v. Board 
of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006) (upholding an immigration judge's 
adverse credibility determination in asylum proceedings based in part on the similarity of some of 
the affidavits); Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding 
that an immigration judge may reasonably infer that when an asylum applicant submits strikingly 
similar affidavits, the applicant is the common source). 
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With respect to wider application of the petitioner's research, counsel cited "[a] copy of the EPA 
Webpage addressing research into noxious emissions research." The petitioner submitted a printout 
from the w·eb page. It does not mention the petitioner's work; it simply-addresses the same subject_ 
that the petitioner's thesis did. Counsel then stated: "Further corroboration ofthe national scope of 
[the petitioner's] work can be found on the website of 
(cOunsel's emphasis). The petitioner did not submit a printout from the web site, but 
counsel provided· the web address for the page. An attempt by the AAO to visit the cited page, 
, resulted 
in an error message (printout added to record March 27, 2013). The AAO cannot presume that the 
Pennsylvania web page specifically discussed the petitioner or his work. The unsupported assertions 
of counsel do not constitute evidence; See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); Matter of Laureano, .19 I&N Dec. 1, 3 n.2 {BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). 
The petitioner has not documented any implementation, or plans for implementation, of the 
petitioner's methods. The petitioner submitted no evidence that his thesis attracted any attention 
outside of _or resulted in any concrete actions by the City of. or any other entity with 
jurisdiction over roads at the federa~ state, county or municipal level. 
Furthermore, there is no evidence that the petitioner's intended future work for the City of _ 
would involve research of this kind. As previously noted, temporary student research does not 
continue to benefit the United States prospectively once the petitioner is no longer a student engaged 
in such research. · 
The remaining basis for the "national scope" claim is that _ "roads and bridges ·. . . are 
connected to the State and to the national highway system" This assertion by counsel appears to be. 
an attempt to compare the petitioner to the beneficiary in the proceeding that led to the NYSDOT 
decision, of whom the decision stated: ''While the alien's employment may be limited to a particular 
geographic area, New York's bridges and roads connect the state to the national transportation 
system. The 'proper maintenance an4 operation of these bridges and roads therefore serve the 
interests of other regions of the country." !d. at 217. The record does not show that the petitioner is 
responsible for the structure or infrastructure of . roads. Rather, descriptions of the 
petitioner's duties appear to address local details. for instance, asserted that the 
petitioner's duties included "optimizing and retiming traffic signals· and analyzing traffic 
signal 
timing plans." The petitioner has not demonstrated that tasks of this nature produce benefits that are 
plausibly and verifiably national in scope. 
Turning to the third prong of the NYSDOT national interest test; counsel asserted that the petitioner 
"is regarded as a 'key' employee of the City and his performance reviews are outstanding. . . . 
Depriving the City of his services would clearly be a disadvantage." Counsel repeated the earlier 
~ claims of several witnesses that the petitioner would be difficult to replace. Counsel did not address 
the issue of labor certification at al~ let alone explain why the City of would not pursue 
labor certification in a situation which, as described, seems ideally suited to the process. 
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Regarding the petitioner's ·~erformance reviews," copies in the record show that a rating of 3.0 
means that the employee "Fully Achieved Expectations," while a rating of 4.0 means the employee 
"Exceeds Expectations." The term "Outstanding" is reserved for a 5.0 rating. In 2010, rated in six 
· areas, the petitioner received five 4.0 ratmgs and one 3.0, for an overall rating of3.75 out of5.0. In 
2011, rated in seven areas, the petitioner received two 5.0 ratings, three 4.0 ratings, and two 3.0 
ratings, for an overall rating of 3.95. The language of the "performance reviews" themselves 
contradicts counsel's claim that the petitioner's ''performance reviews are outstanding." 
The director denied the petition on December 5, 2012 .. The director described the evidence 
submitted and quoted from several witness letters, and concluded that the petitioner had not shown 
that the benefit from his work will be national in scope, or demonstrated that he "plays a significant 
role in [his] field." The director stated: "The quoted witnesses clearly consider the petitioner to be, ~ 
well qualified Traffic Engineer. The national interest, however, is a special benefit over and above 
the . basic qualification sought, and the threshold for that . benefit is well above simply being 
competent and qualified to do one's job." The director added that a lack of qualified job applicants 
would appear to be a favorable factor in approving, rather than waiving, labor certification. 
On appeal, the petitioner states: 
My expertise and experience are not easily reproduced. I was part of the 
'Transportation Action Team' involved with planning transportation and for 
I believe my contributions as a member ofthe 'Transportation Action 
Team' led directly to the planning for the event and its legacy is truly national in 
scope. 
The above passage repeats a basic claim that appears several times in the record. The petitioner has 
not shown how the Transportation Action Team for has had lasting national effect, 
and has not clarified the nature of the petitioner's role in ~hat 150-member team. The petitioner has 
not shown that traffic management for represented a substantial improvement over 
events in preceding years, or that planners for subsequent -· s (or comparable events) have 
adopted ideas from the petitioner that they otherwise would not have used. The is ·a 
significant event that attracts national attention each year, but not typically for reasons related to 
traffic management. 
The petitioner asserts: "the Transportation Plan that I worked on had a legacy in that it was also 
made part of the plan for the Region's 2012 Olympic bid. This again is proof of its national 
character." Leaving aside the lack of evidence to support this claim, the petitioner has not explained . . 
why the local transportation plan for the Olympic Games would have greater scope than the one for 
the . The petitioner simply assumes or declares both to have national scope, based not 
on anything inherent m the transportation plans, but on the reputations of the events themselves. 
Parts of the petitioner's statement on appeal are copied almost word for word froin earlier statements 
by counse~ such as the petitioner's assertion that roads "are connected to the State and 
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to the national highway system," and the refuted claim that his master's thesis ''was later tq.med into 
a semester course at the graduate level." ·To address these claims again would be redundant. 
Regarding his master's thesis, which "determine[ d) a safe roadway buffer width to protect human 
health from air pollutant (NOx) exposure," the petitioner stated that the thesis was "clearly not meant 
for publication as stated on 
page 4 of the Denial." The abstract of the thesis begins with a blank 
space after the phrase "Publication No.," a phrase that serves no purpose on a document "not meant 
for publication." The petitioner then asserts that· his ''research is critical, groundbreaking and 
national in scope . 
. .. beca~se there is no nationally coordinated effort to study and manage air 
quality standards on our roads and highways." The petitioner 
does not explain how his thesis would 
lead to such a "nationally coordinated effort" if it was "clearly not meant for publication," and 
therefore 
would not be read by other engineers and policymakers. 
The petitioner claims: 
My research has been recognized by not just my University, City and State 
Governments, but also by of the great State of Pennsylvania 
and is featured on his website as a model for action in that state. In other words, the 
impact of my research is obvious in more than on~ State; Therefore, the impact of my 
. research is not unsubstantiated as claimed. 
As noted previously, ~he petitioner did not submit a printout from the Pennsylvania web site. 
Counsel provided a web address that no longer functions. Therefore, the petitioner did not submit 
any evidence that the State of Pennsylvania not only identified the petitioner's paper "as a model for 
action" but actually took action, with results that supported the hypotheses advanced in the thesis. 
Without such evidence, the petitioner's assert.ion that ''the impact of [his] work is not 
unsubstantiated" is, itself: unsubstantiated. Furthermore, there remains the point that the petitioner 
does not seek employment as a researcher. Therefore, the observation that he will temporarily 
conduct research as a student does not entitle him to permanent immigration benefits after his studies 
have ended. 
In the appellate brief: counsel states: 
In itemizing the evidence in the Decision, the Service has omitted numerous 
do·cuments that would establish the. following: 
a. Petitioner/Beneficiary is an individual holding an Advanced Degree in the field 
and is also clearly exceptional. 
b. Petitioner/Beneficiary is currently employed in the City of TX that has 
invested. enormous sums of money in his development. 
c. There are compelling [reasons] why Petitioner/Beneficiary's fieid should be . 
considered national in scope, and finally, 
d. Petitioner/Beneficiary's contributions to the field are exceptional and the relative 
merit of allowing him to remain in the U.S. will serve the national interest to a 
(b)(6)
Page 14 
substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
Items (a) and (b) above are irrelevant to the appeal. Regarding (a), the director acknowledged that 
the petitioner is a member ofthe professions holding an advanced degree. Regarding (b), counsel 
has cited no statute, regulation, precedent decision or case law to iridicate that an alien is ~ntitled to a 
national interest waiver because "the alien's employer "has invested enormous sums of money in his 
development," or that an employer's investment of this type excuses the employer from the job offer 
requirement that Congress built· into the immigrant classification that the petitioner seeks. 
Counsel repeats the 
claim that the petitioner's position was vacant for two years before the petitioner 
·filled it. The unstated implication is that labor certification would be redundant, because the 
petitioner has already tested the local labor market and has not found a qualified United States 
worker who sought the job., Oversight over that process rests not with USCIS, but ·with the U.S. 
Department of Labor. A worker shortage is a valid basis for the national interest waiver only in the 
limited case of certain physicians, under terms set forth at section 203(b)(2)(B)(ii) ofthe Act and the 
regulations at 8 C.F.R. § 204.12. Those limited circumstances do not apply in this proceeding. 
Counsel asserts that the petitioner has submitted "credible evidence to satisfy the regulatory criteria," 
and thereby "demonstrated, by a preponderance of the evidence, eligibility for the classification 
sought." In this instance, there are no specified "regulatory criteria" for the waiver except those 
specified at .8 C.F.R. § 204.5(k)( 4)(ii): 
The director may exempt the requirement of a job offer, · and· thus of a labor 
certification . . . if exemption would be in the national interest. To apply for the 
exemption, the petitioner must submit Form ET A-7508, Statement of Qualifications 
of Alien, in duplicate, as well as evidence to support the Claim that such exemption 
would be in the national interest. 
The only existing binding guidance as to. the nature of qualifying evidence is the three:.. pronged test 
set forth inNYSDOT. Points (c) and (d), quoted above, relate to theNYSDOTtest. 
Counsel lists the evidence previously submitted in support of the petition. Counsel's descriptions of 
previously submitted exhibits are not always entirely accurate. For example, counsel states that, in 
response to the request for evidence, the petitioner submitted a "[ c ]opy of an award acknowledging [the 
petitioner's] contnbution in saving the City $700,000.00." The relevant portion of the item described, 
labeled ''Exhibit H," reads as follows. Underlined text is handwritten on the document: 
Notice of Outstanding Contnbution 
This notice is given to [the petitioner] in recognition ofthe following special effort: 
Tremendous effort in processing a Stimulus Grant application. on short notice, for signal 
timing and LED signal indications with the potential of yielding the city over $700,000 
in additional revenue. GREAT JOB!! · 
(b)(6)Page 15 
The certificate indicates that the petitioner won a "Center Stage Award" entitling him to "one hour off 
with pay," and he could ''pass this' original card to the Monthly Breakfast Coordinator . . . for prize 
drawing." The certificate did not mention any "savings" at all. Rather, the petitioner wrote a grant 
application. A "stimulus grant," even "if approved, is a new infusion of funds, rather than "savings." 
Even 
then, the reference to the "potential" for "additional revenue" does not reveal whether or not the 
City of actually received the grant in question. Clearly, counsel has not presented an entirely 
accurate description of this document. 
Both counsel and the petitioner assert that an attempt to replace the petitioner would result in a major 
inconvenience to the City of This assertion implies two main points: first, that the staffing 
issue is one of national rather than local importance; and second, that the national interest waiver is the 
only way that the City of could continue to employ the petitioner. The AAO has already 
discussed the first point. The petitioner has not established why the second point is true; his supervisor 
simply asserted, without elaboration, that "[t]he City is not currently sponsoring immigrant petitions." 
Counsel states: ''Nowhere d~d Petitioner/Beneficiary seek a waiver of the job offer based on the 
importance of his profession as a Traffic Engineer. On the contrary, [the petitioner] sought to show that 
he was engaged in ground breaking research in his field of endeavor." Reference to the petitioner's 
initial submission undermines this assertion. Counsel's first statement, submitted with the petition, 
contained little discussion of the petitioner's research. Instead, counsel stated that the "City of 
transportation future justifies prospective national benefit," and counsel discussed plans 
such as the Thoroughfare Development Plan and the Hike and Bike System Master Plan. Only later did 
the petitioner and counsel place a heavier emphasis on the petitioner's research work. 
Counsel asserts that the petitioner has met his burden of proof by establishing eligibility by a 
prejx>nderance of evidence .. Counsel contends that the director. ''has not examined each piece of 
· evidence for relevance, probative value, and credibility," but relied instead on "selective portions of 
various letters." 
The "preponderance of the evidence" standard requires that the evidence demonstrate 
that the applicant's claim is "probably true," where the determination of''truth'' is made 
based on the factual circumstances of each individual case. Ma.tter of E-M-, 20 I&N 
Dec. 77, 79-80 (Comm'r 1989). In evaluating the evidence, Matter of E-M- also stated 
that "[t]ruth is to be determined not by the quantity of evidence alone but by its quality." 
/d. at 80. Thus, in adjudicating the application pursuant to the preponderance of the 
evidence standard, the director must . examine each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality 
of the evidence, to determine whether the fact to be proven is probably true. 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). Iil the present proceeding, the question is not 
whether or not the statements in the. witness letters (which comprise much of the waiver claim) are 
"probably true." Rather, those claimS, even if entirely true, do not suffice to establish eligibility for the 
waiver. Meeting the preponderance of e~idence standard is a matter .of the quality, rather than quantity, 
(b)(6)
Page 16 
of evidence submitted. The petitioner's selection of witnesses who unanimously support approval of 
the petition does not mean that the record favors approval ofthe petition by a similarly lopsided margin. 
The Board of Immigration Appeals "(BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: ''We not only encourage, btit require the introduction of 
. corroborative testimonial and documentary evidence, where available." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. MatterofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the· field are not without. weight and have received consideration 
above. 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'r 1988). USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. /d. The submission of letters from experts supporting the petition is not presumptive evidence 
of eligibility; USCIS may, as above, evaluate the content of those letters as to whether they support the 
alien's eligibility. USCIS may even give less weight to an opinion that is not corroborated, in accord 
with other information or is in any way questionable. See id. ·at 795; see also Matter of V-K-, 24 I&N 
Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as 
to "fact"). See also Matter of Soffici, 22" I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). ' 
The witness statements contain assertions in the petitioner's favor, but the letters either address local 
concerns, make general statements, or focus .on research work 'that the petitioner performs as a student, 
rather than the duties he would continue 
to perform as a traffic engineer. The witnesses assert that the 
· City of _ can .ill afford to lose the petitioner's services, but there is no explanation why labor 
certification (which seems well suited to the situation described) is not a viable option. There is only 
the summary statement that the City of refuses to pursue it. 
With respect to the petitioner's own claims (and th<;>se made by counsel on his behalf), the petitioner 
· relies on inferences that lack direct evidentiary support, such as the assertion that, because the 
is a nationally significant event, the petitioner's involvement in traffic management for one 
must also, itselt: have proportional national significance. The petitioner's own unsupported 
claims cannot meet the burden of proof See Matter ofSoffici, 22 I&N Dec. 165. The AAO has held: 
The standard of proof should not be confused with the burden of proof. The burden 
of proving eligibility for the benefit sought. remains entirely with the applicant. 
Additionally, the ''preponderance of the evidence" standard does not relieve the 
petitioner or applicant from satisfying ... basic evidentiary requirements. 
MatterofChawathe, 25 I&N Dec. 375, n.7 (internal citations omitted). 
~ I . 
What remains of the appellate brief simply repeats' counsel's statement previously submitted in response 
to the request for evidence, and there is no need to discuss that statem~t a second time. 
(b)(6)
Page 17 
As is clear. from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt froin the requirement ofajob 
offer based on national interest. tikewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis ofthe overall importance of a given·profession, rather than 
. on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
· established that a waiver of the requirement of an approved labor certification will be iri. the national 
interest of the United States. · 
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 sustamed that burden. 
ORDER: The appeal is dismissed:.