dismissed EB-2 NIW Case: Early Childhood Education

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washingt on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 3 0 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE : Petitioner : 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of Jaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~~ Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO dismissed the 
petitioner's appeal. The matter is now before the AAO on motion to reconsider. The motion will be 
dismissed, the previous decision of the AAO will be affirmed, and the petition will remain denied. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences, the arts, or 
business. The petitioner seeks employment as an early childhood multicultural education 
administrator. The petitioner asserts that an exemption from the requirement of a job offer, and thus 
of a labor certification, is in the national interest of the United States. The director found that the 
petitioner had not established that she qualifies for the classification sought, and that the petitioner had 
not established that an exemption from the requirement of a job offer would be in the national interest of 
the United States. The AAO upheld the director's findings on appeal. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
U.S. Citizenship and Immigration (USCIS) policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider 
contests the correctness of the original decision based on the previous factual record, as opposed to a 
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See 
Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). A motion that does not meet applicable 
requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. !d. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. !d. at 60. 
EXCEPTIONAL ABILITY 
With regard to the issue of whether the petitioner qualifies as an alien of exceptional ability in the 
sciences, arts, or business, the AAO's July 18, 2013 decision dismissing the appeal stated: 
In denying the petition on April 1, 2013, the director stated: "The evidence does not show 
that the beneficiary qualifies for the requested classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability." 
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The petitiOner, on appeal, does not contest or even acknowledge this finding. Rather, 
counsel's appellate brief deals exclusively with the other stated ground for denial, concerning 
the 
national interest waiver. When an appellant fails to offer argument on an issue, that issue 
is abandoned . Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2. (11th Cir. 2005), citing 
United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). See also Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) 
(plaintiff abandoned his claims as he failed to raise them on appeal to the AAO). Therefore, 
the petitioner has effectively abandoned her claim of exceptional ability. 
With no finding that she qualifies for the underlying immigrant classification, the petitioner 
cannot qualify for the national interest waiver. 
On motion, counsel states: "Petitioner did not abandon her claim of exceptional ability. On page one of 
the appeal brief, paragraph 2, petitioner restated her qualifications as an alien of exceptional ability, as 
listed in 8 C.P.R. § 204.5(k)(3)(ii) .... " 
The paragraph in the appeal brief identified by counsel stated: 
[The petitioner] requested an NIW [national interest waiver] based on her exceptional 
background and experience as an Early Childhood Educator who has been active in bi­
cultural early child care and education both in her native Colombia, and in the United States 
for more than a quarter century, implementing and managing educational and community 
development projects, writing and publishing newspaper and magazine articles, giving talks 
and presentations at national child care conferences, and receiving media coverage for her 
ability to meet and respond to the particular needs and preferences of people of Hispanic 
background in the United States. 
While counsel commented on the petitioner's "exceptional background" and activities in the field in 
the context of her national interest waiver claim, the preceding paragraph did not specifically 
challenge the director's finding that the petitioner had not qualified as "an alien of exceptional 
ability," or point to specific documentation submitted for at least three of the categories of evidence 
at 8 C.P.R. § 204.5(k)(3)(ii) that supports a finding of eligibility. A passing reference without 
substantive arguments is insufficient to raise that ground on appeal. Desravines v. U.S. Atty. Gen., 
343 Fed.Appx. 433, 435 (11th Cir. 2009). 
The regulation at 8 C.P.R. § 204.5(k)(3)(ii) provides that a petitioner seeking classification as an 
alien of exceptional ability must submit evidence that qualifies under at least three of the following 
categories of evidence: 
(A) An official academic record showing that the alien has a degree, diploma, certificate, or 
similar award from a college, university, school, or other institution of learning relating to the 
area of exceptional ability; 
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(B) Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she is 
being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the industry or 
field by peers, governmental entities, or professional or business organizations. 
As the paragraph identified by counsel did not specify which of the above three categories of evidence 
that the petitioner claimed to meet, the petitioner has not overcome the AAO's determination that she 
abandoned her claim of exceptional ability. The petitioner has not established that the AAO's 
determination was based on an incorrect application of law or users policy, or that it was incorrect 
based on a review of the arguments and documents presented on appeal. 
NATIONAL INTEREST WAIVER 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOI), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that she seeks employment in an area of 
substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. /d. at 217-18. · 
The AAO previously found that the petitioner's work is in an area of intrinsic merit and that the 
proposed benefits of her work would be national in scope. However, the AAO determined that the 
petitioner had failed to establish that she fulfilled the third eligibility factor set forth in NYSDOT . 
In addressing reference letters submitted by the petitioner that contained "similar, and at times, 
identical" language, the AAO stated: 
These similarities across the various 
letters suggest that the language in the letters is not the 
authors' own. Cf Surinder Singh v. Boatd 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 
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may reasonably infer that when an asylum applicant submits strikingly similar affidavits, the 
applicant is the common source). 
Because the letters appear to have been drafted by someone other than the purported authors, 
the letters possess little credibility or probative value. In evaluating the evidence, the truth is 
to be determined not by the quantity of evidence alone but by its quality. See Matter of 
Chawathe, 25 r&N Dec. 369, 376 (AAO 2010). 
* * * 
users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 r&N Dec. 791, 795 (Comm'r 1988). 
However, USers is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. !d. Based on the extensive similarities between the 
above letters, users may accord them less weight. 
In response to the above findings, counsel states: 
AAO questioned the probative value of some of petitioner's recommendation letters because 
they contained similar language. As a courtesy, petitioner did provide draft sample letters to 
the professionals who supported her NIW petition. Each writer was free to edit, add to, or 
delete any part of the sample letter, and each writer willingly signed the letter as indicative of 
his or her opinion of petitioner's exceptional abilities. An equally valid observation can be 
made that repetition of the same language serves to emphasize petitioner's exceptional 
abilities. 
Counsel asserts above that "repetition of the same language serves to emphasize petitioner's 
exceptional abilities," but her argument is not supported by any pertinent precedent decisions to 
establish that the AAO's analysis of the reference letters was based on an incorrect application of 
law or USCIS policy. With regard to the identical language in the recommendation letters being 
accorded less evidentiary weight , the AAO's decision cited to multiple precedent decisions in 
support of its analysis of the letters. See Cf Surinder Singh v. Board of Immigration Appeals, 438 
F.3d at 145; Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d at 519; Matter of Caron International, 19 
I&N Dec. at 795. 
Counsel states that the "AAO itself used virtually identical language to that used in the USCIS denial 
in several sections of its decision." Counsel points to "page 6, paragraphs 6 and 7 of the USCIS 
denial" as being "indistinguishable" from language in the AAO's appellate decision, but there are no 
paragraphs 6 and 7 on page 6 of the director's decision denying the petition . Regardless, the similar 
language in the decisions of the director and the AAO pertains to the statute, legislative history, 
regulations, public rulemaking process, and precedent decision NYSDOT. There is no error in 
repeating the legal bases for a decision on an immigrant visa petition. In contrast, the identical 
language in the petitioner's recommendations letters was submitted as evidence from different 
witnesses who attested to her qualifications and eligibility for the classification sought. 
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In addition to the issue of identical wording appearing in multiple recommendation letters, the AAO 
stated: 
[Tlhe letters ... did not show how the petitioner's work has had a significant effect outside 
of With respect to " being recognized as a model," the 
record does not establish that any other jurisdiction has actually adopted that model, or that 
such adoption has led to significant improvements in the problems that the petitioner's work 
seeks to address. . 
. . Accordingly, the content of the letters is insufficient to establish the 
petitioner's eligibility for the immigration benefit sought. 
The arguments presented by counsel on motion do not specifically contest the AAO's above analysis 
regarding the content of the recommendation letters and their failure to demonstrate the petitioner's 
influence on the field as a whole. Furthermore, as previously stated, a motion to reconsider must 
state the reasons for reconsideration and be supported by any pertinent precedent decisions to 
establish that the decision was based on an incorrect application of law or US CIS policy. Counsel's 
arguments are unsupported by any precedent decisions or other legal authority to overcome or 
undermine the AAO's reliance on Cf Surinder Singh v. Board of Immigration Appeals, Mei Chai Ye 
v. U.S. Dept. of Justice, and Matter of Caron International in evaluating the recommendation letters. 
Accordingly, counsel has not presented sufficient grounds for reconsideration. 
With regard to the petitioner's involvement with the 
, the AAO stated: 
Materials in the record show that the petitioner gave presentations at local or statewide 
conferences in and at the Annual Conference of the 
* * * 
The petitioner's presentations at conferences outside of her own local area provides a means 
of disseminating her work, thereby lending it national scope (provided the petitioner intends 
to continue making such presentations, and provided national organizations continue to 
provide her that opportunity). Such dissemination , however, does not necessarily establish 
the impact and influence of the petitioner's work. 
* * * 
Counsel states: "A further mark of [the petitioner's] national relevance is her active 
membership in the and her yearly 
educational presentations at conventions since 2006" (emphasis in original). 
Membership in a national organization does not lend national significance to any given 
member. With respect to her conference presentations, these are not ·~a further mark" of her 
impact, because counsel had already stated that the petitioner "has lectured in California, 
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Maryland, New Mexico and Utah." The record shows that many of these lectures were the 
petitioner's presentations at conventions. Citing the same evidence again, m a 
different context, does not constitute "further" support for the petition. 
In 
response to the above fmdings, counsel states: 
AAO objected to petitioner's use of the same evidence to show membership in a national 
organization and national impact through lectures given for the same organization. Note that 
the USCIS Adjudicator's Field Manual, Chapter 22.2(a), states: 
A list of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii) (is) applicable to this 
immigrant classification. Note that in some cases, evidence relevant to one criterion may 
be relevant to other criteria set forth in these provisions. 
The AAO, however, was not commenting on the petitioner's membership and conference 
presentations as evidence of her eligibility for classification as an alien of exceptional ability 
pursuant to the regulatory categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii). Instead, the AAO was 
addressing the third prong of the NYSDOT test which requires the petitioner to establish that she will 
serve the national interest to a substantially greater degree than would an available U.S. worker having 
the same minimum qualifications. The AAO indicated that the petitioner's presentations had 
already been addressed earlier 
in the appellate decision, and that her membership in that organization 
was not sufficient to show any further impact or influence from her work. In order to establish 
eligibility for the national interest waiver, the petitioner must demonstrate a past history of 
achievement with some degree of influence on the field as a whole. See NYSDOT, 22 I&N Dec. at 
219, n. 6. 
Counsel further states: 
Few, if any multicultural early childhood educators have qualifications comparable to 
petitioner's - a college degree and certificates for additional post-college training in child 
care; experience far in excess of ten years; national, professional organization presentations; 
recognition by peers, former employers and government officials; media coverage; and 
intimate know ledge of Latina culture and language. 
* * * 
Petitioner's uncommon qualifications and the fact that in America only 4.9% of Latina 
women and 3.2% of Latina men obtain a bachelor's degree in any discipline, (National 
Center for Education Statistics. Table 297, Digest of Education Statistics 2010 (2011)), show 
that petitioner's degree of expertise is significantly above that ordinarily encountered in the 
field of early bi-lingual childhood education. 
Counsel assets above that "few" multicultural early childhood educators have qualifications 
comparable to those of the petitioner. As the alien employment certification process was designed to 
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address the issue of worker shortages, a shortage of qualified workers in a given field does not establish 
eligibility for the national interest waiver. The issue of whether similarly-trained workers are 
available in the U.S. is an issue under the jurisdiction of the Department of Labor. NYSDOT, 22 
I&N Dec. at 221. Moreover, any objective qualifications which are necessary for the performance of 
the occupation can be articulated in an application for alien employment certification. /d. at 220-221. 
In addition, counsel asserts that the "petitioner's degree of expertise is significantly above that 
ordinarily encountered in the field of early bi-lingual childhood education." However , 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 , whether a given individual 
seeks classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a national interest waiver just by demonstrating a 
degree of expertise significantly above that ordinarily encountered in her field of expertise. 
The petitioner has not established that her past record of achievement is at a level that would justify · 
a waiver of the job offer requirement which, by law, normally attaches to the visa classification 
sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. /d. at 
217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole"). 
The petitioner has failed to support her motion with any legal &rgument, precedent decisions, or 
other comparable evidence to establish that the AAO's July 18, 2013 decision was based on an 
incorrect application of law or USCIS policy. In addition, the petitioner has not established that the 
AAO's previous decision was incorrect based on the evidence of record at the time of the decision. 
On the basis of the documentation submitted, the petitioner has not established that a waiver of the 
requirement of ~m approved labor.certification will be in the national interest of the United States. 
The regulation at 8 C.P.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous 
decisions of the director and the AAO will not be disturbed. 
In visa 'petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reconsider is dismissed, the AAO's July 18, 2013 decision is affirmed, 
and the petition remains denied.