dismissed EB-2 NIW Case: Biology Education

identifying data deleted to 
prevent clearlv unwarranted 
invasion'" ",,:.1 pnvacy 
1'tmtTC COP~ 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. llepartment of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Omce: TEXAS SERVICE CENTER Date: 
NOV 1 7 2010 
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 USc. § I 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please tind 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 omce. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
int()rmation that you wish to have considered, you may tile a motion to reconsider or a motion to reopen. 
The specitic 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 tiling a Form 1-290B, Notice of Appeal or 
Motion. The fee for a Form 1-290B is currently $585, but will increase to $630 on November 23,20 I O. Any 
appeal or motion filed on or atier November 23,20 I 0 must be tiled with the $630 fee. Please be aware that 8 
C.F.R. Ii 103.5(a)( \)(i) requires that any motion must be tiled within 30 days of the decision that the motion 
seeks to reconsider or rcopen. 
Thank you, 
~~ ?--Perry Rhew 
Chiet~ Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a biology instructor. The petitioner asserts that an exemption from the 
requirement of a job ofTer, and thus of an alien employment certification, is in the national interest of 
the United States. The director found that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree, but that the petitioner had not established that an exemption 
from the requirement ofajob ofTer would be in the national interest of the United States. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below. we 
uphold the director's decision. Ultimately, the proposed benefits of the petitioner's work are purely 
local. Moreover, counsel has repeatedly referenced a shortage of science teachers in the United States 
but the record is absent any evidence or explanation as to why the alien employment certification 
process, a process designed to remedy shortages, would not serve the national interest in this matter. 
Thus, the petitioner has provided no basis for a waiver of that process. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. --
(A) [n 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 
oj" the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of job 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 holds a Ph.D. from Louisiana State University. The petitioner's occupation falls within 
the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the 
professions holding an advanced degree. The remaining issue is whether the petitioner has established 
Page 3 
that a waiver of the job offer requirement, and thus an alien employment certification, is in the national 
interest. 
Neithcr the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest 
by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, IOlst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing signilicantly 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 ol~ the job oiler will be in the 
national interest. Each case is to be judged on its own merits. 
Maller olNew York Slale Dep'r of1ransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"). 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. Id. at 217. Next, the petitioner must show that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id. at 217-18. 
It must be noted that, while the national interest waiver hinges on pro.\pective national benefit. the 
petitioner must establish that the alien's past recordjustilies projections of future benefit to the national 
interest. ld. at 219. The petitioner's subjective assurance that the alien will. in the future, serve the 
national interest cannot sutlice to establish prospective national benefit. The inclusion of the term 
"prospective" is used here to require future contributions 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 entirely speculative. ld. 
At the outset it is necessary to address the claimed existence of a shortage of science teachers. Initially, 
counsel asserted that while such a shortage exists, it does not serve as the basis for requesting a waiver 
of the alien employment certification process. Nevertheless, throughout the proceeding, counsel has 
repeatedly discussed this shortage and submitted evidence purporting to document the shortage. 
NYSDOT, 22 I&N Dec. at 220-21, howevcr, specifically rejects the proposition that a waiver of the 
alien employment certification process can be based on a shortage. NYSDOT, 22 I&N Dec. at 220-21 
states: 
Page 4 
Id. 
[The 1 assertion of a labor shortage, therefore, should be tested through the labor 
certitication process .... The issue of whether similarly-trained workers are available in 
the U.S. is an issue under the jurisdiction of the Department of Labor. 
The pelllloner has never explained why, if the alleged shortage exists, the alien employment 
certification process would not serve the national interest in this matter. Nothing in the legislative 
history suggcsts that the national interest waiver was intended simply as a means for employers (or selt~ 
petitioning aliens) to avoid the inconvenience of the alien employment certification process. ld. at 223. 
We concur with the director that the petitioner works in an area of intrinsic merit biology education. 
The director then concluded that the proposed benetits of his work, improved biology education, 
would not be national in scope. Counsel and the petitioner have asserted that, as an instructor at a 
school for gifted students, the petitioner's students will go on to spread the benetits of the 
petitioner's work. The petitioner has submitted evidence of the success of his students and former 
students at science fair competitions. On appeal, counsel cites unpublished decisions by this otlice. 
One of these decisions predates NYSDOT, 22 I&N Dec. at 215, and the most recent decision is for a 
musician for whom the late Steve Allen prepared a strong letter of support. While 8 C.F.R. 
~ I03.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
In addressing this issue, Nl~S'D()T 22 I&N Dec. at 217, n.3 provided the following examples of 
occupations that would not have beneiits that are national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but thc 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national 
interest, the impact of a single schoolteacher in one elementary school would not be in 
the national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(8) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sutliciently in 
the national interest for purposes of this provision of the Act. 
ld. It is clear from this languagc that the impact of a single teacher at one school is negligible at the 
national level. Thc record contains no evidence that the petitioner will create curriculum that could 
intlucnce the teaching of science at the national level or comparable evidence of his potential 
national impact in the field of science education. Thus, we concur with the director that the 
petitioner has not demonstrated that the proposed benefits would be national in scope. 
Page 5 
It remains, then, to detennine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The petitioner 
submitted evidence regarding the importance of advanced placement (AP) biology instruction in 
general. Eligibility for the waiver must rest with the alien's own qualitications rather than with the 
position sought. In other words, we generally do not accept the argument that a given project is so 
important that any alien qualified to work on this project must also qualify for a national interest 
waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses 
usetul skills, or a "unique background." Special or unusual knowledge or training does not 
inherently meet the national interest threshold. The issue of whether similarly-trained workers are 
available in the United States is an issue under the jurisdiction of the Department of Labor. ld at 
221. 
At issue is whether this petitioner's contributions in the field are of such unusual signiticance that the 
petitioner merits the special benetit of a national interest waiver, over and above the visa 
c1assitication he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. ld. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insunicient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. ld. at 22 Ln. 7. 
Initially, the petitioner provided the College Board AP results in Biology for the school where the 
petitioner teaches, the Alabama School of Mathematics and Science (ASMS) where the petitioner 
currently teaches. These results retlect that 77 percent of the school's nine students who took the AP 
Biology test scored in the highest quarter, compared with 25 percent globally. We cannot ignore, 
however, that ASMS' student population is not comparable to the global population as ASMS does not 
have open admission. 
The record also contains a June 14, 2006 memorandum from the President of ASMS advising that the 
percentage of ASMS students scoring three or above on an AP examination had risen from 45 percent 
to 67 percent. This increase in scores, even if attributable to the petitioner, would not demonstrate his 
influence in the field. The petitioner also submitted July 2008 email messages posted on an AI> 
Biology online message board from biology teachers whose students did not score as expected on the 
AP Biology exam. These anecdotal comments from teachers whose students didn't score as expected 
do not ret1ect on the petitioner's int1uence in the field. 
The petitioner also submitted several letters from current and past students as well as his students' 
science projects and awards they have won at various science fairs. Some of the science fairs also 
recognI2:e the teacher who mentored the students. In , Central 
confinns that the 
petitioner brought student teams to this competition and that his teams always did well. The record 
includes several awards trom this competition from 2002 through 2004. The fact that the petitioner's 
current and past students are or were motivated by the petitioner, however, does not demonstrate that he 
Page 6 
has a track record of success with some degree of influence on the field of science education. The work 
of his students, while not unrelated to his skill as a teacher, is primarily the students' work and does not 
establish the petitioner's inf1uence on other science educators. 
The record reflects that the petitioner is the project director of "A Tale of Two Watersheds: People, 
Bacteria, and Environmental Quality." Toyota and the National Science Teachers Association (NSTA) 
funded this project with a Toyota Tapestry Grant. A promotional article about the grant on ASMS' 
website indicates that was the principal writer for the grant. [n this project, the school's 
students examined the conditions of two streams, one of which is surrounded by a city and the other of 
which is forested. Assistant Director for Corporate Partnerships for NST A and 
Manager of the Toyota Tapestry Grants, asserts that the petitioner's watershed project was successful 
and made a positive impact on his school and community. Mr. . continues that the petitioner's 
project "was publicized locally and nationally and details on his grant project are available to NSTA 
members throughout the country." While this project benefited the petitioner's students, school and 
community, this grant does not reflect on the petitioner's impact or influence in the field of science 
education. We reiterate that while the petitioner directed the project, he was not the principal writer on 
the grant. Regardless, the mere availability of this grant for review by NSTA members is not evidence 
of its ultimate inf1uence on NST A members. The record does not renect that this project has served as 
a template for science projects nationwide or that the petitioner serves as a national mentor or guide in 
obtaining such grants, 
The petitioner also submitted letters from graduate students in Louisiana and Alabama attesting to the 
petitioner" s informal assistance with their dissertations. These letters, while affirming the petitioner's 
generosity and dedication to education, do not establish his inl1uence on science education nationally. 
The petitioner submitted his 2002 favorable evaluation from the Arkansas School for Mathematics and 
Sciences where he previously worked. Once again, while this evaluation establishes his skill at 
teaching, it does not demonstrate his inl1uence in the field of science education, In addition, the 
petitioner submitted "A Teaching Kit for a Process of Photosynthesis." While an attached adhesive 
note indicates that this kit has been available on the [nternet tor years, the petitioner submitted no 
evidence that this kit is in use nationwide or has otherwise impacted the field of science education. Not 
every document available on the Internet can be preswned to have inl1uenced a field. 
Dr. Senior Deputy Director of Curriculum and Research Services at the Kenya Institute of 
Education, confirms that the petitioner was a panel member of the Kenya Institute of Education 
national biology panel between 1984 and 1989. This service included developing the secondary 
education biology curriculum, providing orientation for teachers on the new curriculwn and developing 
support materials for the curriculum. The petitioner, however, does not indicate that he will be 
participating in a national panel on biology curriculum in the United States. Thus, while his past 
service on such a panel in Kenya is notable, it does not demonstrate his future potential for a national 
impact in the United States. 
Page 7 
[n response to the director's request lor additional evidence, the petitioner submitted an August [3, 
2008 email from at the University of Alabama inviting the petitioner to participate in 
the AP ITP Biology team. This invitation postdates the filing of the petition and cannot be considered. 
See 8 C.F.R. §§ [03.2(b)(l), (l2); Matter of Katigbak, [4 [&N Dec. 45, 49 (Reg'!. Comm'r. [971). 
Regardless, it cannot demonstrate the petitioner's impact or influence outside of Alabama, Similarly, 
on appeal the petitioner submits evidence that he has submitted a paper on student understanding of 
photosynthesis, evidence that also postdates the filing of the petition and cannot be considered. Id 
Regardless, mere authorship of a published paper does not demonstrate its influence in the field without 
additional evidence, such as citations of that paper. 
••••••••• , Secretary of the Arkansas School lor Mathematics, Sciences and the Arts 
Faculty Senate, advises that the Faculty Senate approved a resolution that the petitioner is a valuable 
education who has made a significant contribution to the education of the school's students and 
Arkansas' students and moved to encourage the administration to act in support of the petitioner's 
etIorts to secure permanent residence in the United States, This resolution does not explain why the 
alien employment certification process is inapplicable or demonstrate the petitioner's influence in 
science education beyond the school where he taught. 
[n an April IS, 2005 letter, Dr. Dean of Academic AITairs at the Arkansas School lor 
Mathematics, Sciences and the Arts asserts that the petitioner was a valued member of the faculty at 
that school where he taught several biology courses, including AP Biology and AP Environmental 
Science. Dr. _further confirms that the petitioner served as a research mentor for approximately 
10 students whose projects are biological in nature, Dr. notes the success of the petitioner's 
students at competitions and on AP exams. Dr. _ does not explain how the petitioner has 
int1uenced the field of science education as a whole. The petitioner no longer works at this schoo!. 
Dr. Science Department Chair at the Arkansas School lor Mathematics, Sciences and 
the Arts, praises the petitioner's skill and asserts that the petitioner's students have won more prizes at 
state-level science fairs and qualilied lor more international science fairs than the students of any other 
teacher. Dr. I docs not explain how this success has inlluenced the lield of science education as 
a whole or explain why the alien employment certilication process would not serve the school where 
the petitioner currently works. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self~serving:' See, e.g., Matter ofS-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases), The Board also held, however: "We not only encourage, but 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, Malter ofY-B-, 21 [&N Dec. 1136 (B[A 1998). 
The opinions of experts in the field are not without weight and have been considered above. USC1S 
may, in its discretion, usc as advisory opinions statements submitted as expert testimony, See Malter 
Page 8 
0/ Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the bencfit sought. 
!d. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also Maller 0/ V-K-, 24 I&N Dec. 500, n.2 
(BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
USCIS may even 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 Maller 0/ Solfiei, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Maller 0/ Treasure Craft 0/ CalijiJrnia, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of skill without specifically 
identifYing innovations and providing specific examples of how those innovations have influenced 
the field. Merely repeating the language of the legal requirements does not satisfY the petitioner's 
burden of proof. I The letters are from the petitioner's immediate circle of colleagues, former fellow 
students and current and past students rather than from independent science educators who can 
explain the petitioner's influence in science education as a whole. The documentary evidence merely 
establishes the petitioner's local impact as a successful teacher. 
As is clear Irom 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 Irom the requirement ofajob 
oller based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the 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 alien employment certification will be in 
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 sustained that burden. 
This denial is without prejudice to the tiling of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and tee. 
ORDER: The appeal is dismissed. 
I Fedin Bros. Co .. Ltd. v . .'lava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a[fd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States. 745 F. Supp. 9, 15 
(D.C. Dist. 1990).