dismissed EB-2 NIW Case: Early Childhood Education

(b)(6)
DATE: 
JUL 18 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave., 
N.W., MS 2090 
Washington, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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 law 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:ijwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~n Rosenberg 
Acting Chief, Administrative Appeals Office 
www.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 AAO on appeal. The AAO will dismiss the appeal. 
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 
indicated that she worked 15 hours per week as the executive director of the 
in , Maryland, which the petitioner 
founded in September 2011, and 35 hours per week as a volunteer at the 
, Maryland. 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, or that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced 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 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. 
EXCEPTIONAL ABILITY 
The petitioner filed the Form I-140 petition on November 8, 2011. In an accompanying statement, 
counsel indicated that the petitioner claims eligibility for classification as an alien of exceptional 
ability in the sciences, the arts, or business. 
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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." 
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. US 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. Nevertheless, counsel's assertions on appeal relate solely to 
national interest waiver claims. Accordingly, the AAO will address this issue below. 
NATIONAL INTEREST WAIVER 
The remaining 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 
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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 
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 of, 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 (NYSDOT), 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. 
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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 will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
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, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantlyabove that ordinarily encountered in his or her field of expertise. 
In an introductory statement, counsel asserted that immigrant children and many United States-born 
children of immigrants face economic, linguistic, and other barriers that can place them at a 
disadvantage in relation to other children. This statement attests to the substantial intrinsic merit of 
the petitioner's occupation. 
Regarding the petitioner's qualifications for the waiver, counsel stated: 
Media coverage, professional awards and qualified experts recognize [the petitioner] 
as an exceptional early childhood educator whose abilities have significantly 
benefited the nation and who will serve the national interest to a substantially greater 
extent than would American workers similarly qualified .... 
If labor certification were required in this case, the national interest would be 
adversely affected. The anticipated benefits from [the petitioner's] work depend on 
her proven record of achievement and her unique and innovative skills, knowledge 
and background. The experts who have written on [the petitioner's] behalf explain 
that more than mere minimum qualifications are required to succeed in the critical 
research projects on which she works. Labor certification is a standardized process 
relating to minimum requirements of education and experience. This process will not 
take into account the many essential qualities that [the petitioner] possesses which are 
clearly vital to the national interest. ... Unquestionably, she will serve the nation to a 
substantially greater degree than anyone with minimum qualifications. 
On ETA Form 750-B, Statement of Qualifications of Alien, the petitioner listed her duties at the 
LCAGW: "Conduct core khowledge training to childcare providers to Latino children in the 
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Page 5 
_ metropolitan area; provide professional support activities through mentoring & 
monthlv meetings." The petitioner also described her duties with a previous employer, the 
Maryland: 
Plan, implement & oversee all ongoing programs & special projects aimed at Latino 
& other low-income/low English proficiency immigrant families through early 
childhood education, advocacy, workforce training, small business development, 
women's leadership & community building; manage private & government funded 
instructional , educational & leadership development programs including childcare 
centers, women's groups, parents' training & support & community outreach 
programs. 
The petitioner submitted several witness letters with the initial filing of the petition. Two of the 
witnesses, Dr. and , work with the petitioner at 
, 
a social service provider that does not appear to be directly involved in early childhood 
education. Their letters do not address the petitioner's work in early childhood education, which is 
the principal basis for the waiver claim. 
director of 
stated: 
Before becoming an administrator I ... served as an Education Policy Analyst and as 
an Associate Director of 
I came to know [the petitioner ' s] work while involved in a National Council of La 
Raza study that examined the gaps in Early Childhood Education and services for US 
born children of immigrants .... 
[The petitioner 's] work at speaks to these issues directly and shows a 
track record of success. [The petitioner's] work and expertise includes leading efforts 
in curriculum design, workforce development and family support. This resulted in 
being recognized as a model on how to implement Early Childhood 
Programs helping children of immigrants advance in their school readiness skills, 
while [the petitioner's] expertise in the field of Early Childhood Education has been 
widely recognized both nationally and internationally through her frequent 
collaborations with international Early Childhood Education schools and support 
organizations and her publications and interviews in both ethnic and mainstream 
media. 
now family childcare provider network su ort coordinator for Family Services 
Inc., previously worked as a program coordinator for president and 
chief executive officer of was previously the founder and executive director of 
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Their letters are very similar and, at times, identical. Both letters, for instance, contain the 
following passage, including the same punctuation and capitalization: 
[The petitioner] was instrumental in the development of the training curriculum, 
management and operations of our early childhood center and represented the 
organization and the population we served, in several local commissions and boards 
including the where she was the Co-
Chair of the She was also a member of an Ad Hoc 
Committee appointed by the Chief of 
to examine and - - - -update the regulations for child care subsidies and vouchers. 
Both letters indicated that the petitioner's "extensive knowledge of Early Childhood Education and 
childcare has been featured in many articles she has written and/or interviews with local, State and 
National media," followed by a list of interviews and news stories. 
Exactly the same list, with the same formatting and in the same order. appears in a letter signed by 
Sigridur Asta Eythorsdottir, an occupational therapist in Iceland. That letter also 
included the following passages: 
[The petitioner] has over 25 years of experience in the field of early childhood 
education. She has taught, directed, and provided administrative supervision for 
multiple Early Childhood Education programs. She has experience with groups of 
varied ages, cultures and languages, and her extensive work experience and research 
make [the petitioner] a particularly knowledgeable and experienced individual to 
work with. She is by all means a valuable asset to the Early Childhood Education 
community in the US .... 
[The petitioner] has written and done interviews with local, State and National media 
where her extensive knowledge of Early Childhood Education and childcare has been 
featured. 
Professor ___________________ ___.-~ Venezuela, . 
signed a letter that read, in part: 
Over 25 years of experience in the field of early childhood education, [the petitioner] 
has taught, directed, and provided administrative supervision for multiple Early 
Childhood Education programs. Her experience with groups of varied ages, cultures 
and languages, in addition to her extensive work experience and research make [the 
petitioner] a particularly knowledgeable and experienced individual to work with and 
an asset to the Early Childhood Education community in the US and Latin America. 
(b)(6)
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NON-PRECEDENT DECISION 
[The petitioner's] extensive knowledge of Early Childhood Education and childcare 
has been featured in many articles she has written and/or interviews with local, State 
and National media. 
The quoted passages from the last two letters vary only somewhat in phrasing, and are virtually 
identical in substantive content. They contain many of the same phrases, and the two letters also 
contain the same idiosyncratic capitalization of "State and National." Moreover, a phrase that 
appears in Ms. 's letter, "Demographic projections indicate that by 2025 the majority of 
Children under 18 will be Latino. As this population grows ... ," also appears in Ms. s 
letter. These similarities across the various 
letters suggest that the language in the letters is not the 
authors' own. 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). 
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 
I&N Dec. 369, 376 (AAO 2010). 
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, 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. Matter ofY-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). However, 
USCIS 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, USCIS may 
accord them less weight. 
Apart from the questions raised by identical wording appearing in multiple letters, the letters 
considered above 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. 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 
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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 of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Accordingly, the content of 
the letters is insufficient to establish the petitioner's eligibility for the immigration benefit sought. 
Several witnesses have identically claimed that the petitioner has made several television and radio 
appearances, but the record contains no evidence to support these claims. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici , 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner submitted photocopies of print articles and printouts of online articles. the 
ran an 
article entitled "County Strengthens Partnerships with Nonprofit Agencies." The article mentioned 
the petitioner once, when it identified all the participants in an April 2007 meeting. 
An online article from concerned a November 2006 fundraiser in Maryland, 
to benefit a new preschool "for low-income immigrant children." A September 2008 article in the 
described "the new day-care center" in Maryland. Both 
articles quoted the petitioner in her capacity as an official of The petitioner 
submitted four different versions of the article, under the mastheads of various local news 
aggregators. 
Another article, concerning the May 2011 opening in Wheaton of"[ a] center for women 
and children's nutrition," quoted the petitioner in her capacity as an "executive assistant with 
" 
The petitioner submitted three Spanish-language articles from and one from 
without the certified English translations required by the USCIS regulation at 
8 C.F.R. § 103.2(b )(3). Without such translations, the evidence serves only to demonstrate the 
existence of Spanish-language articles showing her name. 
The record shows that the petitioner served "as a business and general public representative" on the 
_ . from 2006 to 2009. Congratulatory letters from 
County Council members thanked the petitioner for being one of "so many outstanding citizens who 
volunteer to serve on our boards, committees, and commissions." 
Materials in the record show that the petitioner gave presentations at local or statewide conferences 
in Maryland and New Mexico and at the 2010 Annual Conference of the 
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The director issued a request for evidence on September 13, 2012. This notice only dealt with the 
criteria for exceptional ability; it did not discuss the requirements for the national interest waiver. 
The petitioner's response included a letter from observation specialist at the 
stating that the petitioner "is currently an observer" for the association's accreditation program. Ms. 
stated that the beneficiary "has completed six accreditation observations for ' since 
2006, or about one observation per year on average. The petitioner did not submit information about 
the accreditation program itself. 
The petitioner did not show that her efforts as an observer for that 
program established eligibility for the waiver under the NYSDOT guidelines. 
The petitioner also submitted a letter from vice president of the 
Ms. stated: 
One of [the petitioner's] most recent accomplishments has been supporting the 
convened by my office as part of the 
plan established by the 
of which I am a member. 
The was a success, attracting more than 300 community members, 
including 43 federal officials, and 27 state and local elected and government officials 
and achieved effective dialogue among members of our community who carne 
together to identify obstacles and solutions on issues pertinent to the interests and 
needs of the Hispanic community. A final report from the White House detailing the 
topics discussed during the "Open Space" process will be released soon . 
. 
. . [The petitioner's] contributions have had and will continue to add a substantial 
impact on the Early Care and Education field. 
In the April 1, 2013 denial notice, the director quoted from several witness letters and described 
other exhibits. The director concluded that the petitioner had established that she performed in 
important roles for her employers, but had not established the wider impact and significance needed 
to qualify for the national interest waiver. The director found that the petitioner had met only the 
first prong (substantial intrinsic merit) of the NYSDOT national interest test. 
On appeal, counsel states: 
[The petitioner] is a force in meeting the need for certified bicultural child care 
providers .... [The petitioner] trains early childhood care takers in successful 
bilingual and bicultural techniques not only in Maryland but also across the nation. 
She has lectured in California, Maryland, New Mexico and Utah. 
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 
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opportunity). Such dissemination, however, does not necessarily establish the impact and influence 
of the petitioner's work. 
Counsel states that "pointed out that [the petitioner] provided support for the 
. which was attended by scores of federal and state 
elected and government officials. [The petitioner's] contributions to this summit clearly indicate her 
nationwide 'substantial impact on the Early Care and Education field."' The record does not contain 
1evidence about the nature of the support the petitioner provided, and does not identify the claimed 
impact that the petitioner's involvement had on the summit or, afterwards, on the field as a whole. 
The petitioner has not established that her support for the summit had a nationwide substantial 
impact, even if unnamed federal officials were present at the summit. Ms. 's letter shows 
only that the beneficiary had an unspecified role in organizing and/or presenting the event. 
Counsel acknowledges that the petitioner's "work has affected early childhood education primarily 
in her native country and in Maryland," but claims "the impact of her work 
has countrywide potential." At best, this assertion again addresses the "national scope" prong of the 
NYSDOT national interest test. The petitioner cannot qualify for the waiver based only on 
"countrywide potential." An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time of filing the benefit request. 8 C.F.R. § 103.2(b)(l). USCIS cannot 
properly approve the petition at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). The 
assertion that the petitioner's existing local impact may one day spread nationally is speculative and 
does not establish that the petitioner already qualified for the waiver at the time of filing. 
Counsel states: "A further mark of [the petitioner's] national relevance is her active membership in 
the and her yearly educational presentations 
at s 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, Maryland, New Mexico and Utah." The record shows that 
many of these lectures were the petitioner's presentations at NAFCC conventions. Citing the same 
evidence again, in a different context, does not constitute "further" support for the petition. 
To support the contention that the petitioner ''has influenced the field of early childhood care to a 
degree substantially greater than a similarly qualified US worker," counsel states: "Since there is a 
known shortage of qualified educators for the Hispanic population, a certified trainer [with the 
petitioner's credentials] ... is clearly more influential than a similarly qualified US worker who 
might be identified through the labor certification process." Counsel offers no support for the 
general claim that experience and credentials necessarily translate into influence. With respect to the 
"known shortage of qualified educators for the Hispanic population," a principal purpose of labor 
certification is to identify and address worker shortages. A worker in a shortage occupation faces 
less competition for a given position and would therefore be more likely, not less, to qualify for 
labor certification. 
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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 in the national interest of the United States. 
Furthermore, the petitioner has not established that she qualifies for the immigrant classification that 
would permit her to apply for that waiver. 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.