dismissed EB-2 NIW Case: Education

(b)(6)
U.S. Department ofRomeland S~urity 
U.S. Citizenship and Immigration Service1 
Office of Admini strative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
JUL 2 6 2013 
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 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://www.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, 
(),)) IJefimu U Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
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 a member of the professions holding an advanced degree. According to 
Part 6 of the Form 1-140, the petitioner seeks employment as a "High School Math Teacher" for 
Most recently, the petitioner taught at High 
School in Maryland, until her H-1B nonimmigrant status expired on October 15, 2011. 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 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 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. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. 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 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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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 (November 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, 217-18 (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 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.P.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 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner has established that her work as a mathematics and science teacher is in an area of 
substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of 
petitioner's work would be national in scope and whether she will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
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Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. !d. at 220. Moreover, it cannot suffice to state that 
the alien possesses useful 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. /d. at 221. 
The petitioner filed the Form I-140 petition on April11, 2012. The petitioner stated: 
I was hired by since November 28, 2007-
until October 15, 2011. But due to the sanction given by the Department of Labor, it 
was not able to grant extension to all those teachers whose H-1B visa expired from July 1, 
2011 onward, with me included. 
The U.S. Department of Labor invoked the debarment provisions of section 212(n)(2)(C)(i) of the 
Act against owing to certain immigration violations by that employer. As a result, between 
March 16, 2012 and March 15. 2014. USCIS cannot approve any employment-based immigrant or 
nonimmigrant petitions filed by This debarment means that is, temporarily, unable 
to file its own petition on the alien's behalf, and thus explains why labor certification is not an option 
in the short term. The inapplicability or unavailability of a labor certification cannot be viewed as 
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the alien will 
serve the national interest to a substantially greater degree than do others in the same field. 
NYSDOT, 22 I&N Dec. at 218 n.5. Any waiver must rest on the petitioner's individual 
qualifications, rather than on the circumstances that (temporarily) prevent from filing a 
petition on her behalf. 
The petitioner further stated: 
My expertise is a teacher in Mathematics, Algebra, Calculus, Trigonometry, Geometry, 
Probability Statistics, Environmental Science, Surveying, Hydrology in the College of Civil 
Engineering at University .... Our engineering students received rigorous training 
and differentiated instruction, their multiple intelligences were tapped, and they were guided 
and supervised in their thesis and projects. 
* * * 
At I was highly certified in teaching Mathematics to students in different levels 
ranging from Grade 4 to Grade 12 where I was assigned to Middle School 
as co-teach [sic] from 2007-2008. I was then moved to High School where I 
1 
The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.clol.gov/whd/immigration/HlBDebarment.htm, accessed on June 28, 2013, copy incorporated into the record 
of proceeding. 
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was assigned varied populations from regular students to students with special needs on 
August 2008- to October 2011. 
As a special Education teacher in Mathematics, I functioned as a case manager, developing 
Individualized Education Plan (IEP) for students and arranging meeting of parents with the 
IEP team, as well as monitoring students in their IEP functional Mathematics and other 
goals. 
In an April 9, 2012 letter accompanying the petition, counsel asserted that the petitioner's national 
interest waiver as a high school mathematics teacher is "based on her Doctor of Education [degree] 
in Educational Management and Master of Arts degree in Teaching Mathematics plus over (10) 
years of dedicated professional experience as a Mathematics teacher." Advanced degrees and length 
of experience are not factors that qualify the petitioner for a national interest waiver. The advanced 
degree is, by definition, a fundamental requirement for classification as a member of the professions 
holding an advanced degree, and ten or more years of experience is a factor in establishing 
exceptional ability in the sciences, the arts or business (see 8 C.F.R. § 204.5(k)(3)(ii)(B)). Section 
203(b )(2)(A) of the Act subjects both of those classifications to the job offer requirement. The 
national interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not imply eligibility for the additional benefit of the 
waiver. 
Counsel further stated: 
More so, aside from her advanced degrees, the merit of [the petitioner's] request for a 
National Interest Waiver is based on the improvement to the United States Education more 
particularly in the field of Mathematics, which is one of the top priorities in the education of 
children in the county. As we are all aware, Federal as well as State governments are 
promoting the four areas of education in STEM or Science, Technology, Engineering and 
Math. 
The overall importance of STEM education does not imply that any one teacher will play a 
nationally significant role by educating her students in those areas. General arguments regarding the 
importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot 
by themselves establish that an individual alien benefits the national interest by virtue of engaging in 
the field. NYSDOT, 22 I&N Dec. at 217. Such assertions address only the "substantial intrinsic 
merit" prong of NYSDOT s national interest test. 
Counsel also pointed to the progress demonstrated by the petitioner's students as affirmed in the 
letters of support submitted in her behalf. With regard to the petitioner's teaching duties, there is no 
evidence establishing that the benefits of her work would extend beyond her students and schools 
such that they might have a national impact. NYSDOT, 22 I&N Dec. at 217, n.3. provides examples 
of employment where the benefits would not be national in scope: 
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For instance, pro bono legal services as a whole serve the national interest, but the 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)(B) of the Act. As another example, 
while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not 
be considered sufficiently in the national interest for purposes of this provision of the Act. 
!d. In the present matter, the benefits of the petitioner's impact as a high school mathematics teacher 
would be primarily limited to students at local her school and, therefore, so attenuated at the national 
level as to be negligible. Moreover, the record lacks specific examples of how the petitioner's work as 
a teacher has influenced the field on a national level. At issue is whether this petitioner's 
contributions in the field are of such unusual significance that the petitioner merits the special 
benefit of a national interest waiver, over and above the visa classification she seeks. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. !d. at 219, n. 6. 
The petitioner submitted various letters of support discussing the petitioner's work as a teacher. As 
some of the letters contain redundant claims already addressed in other letters, not every letter will 
be quoted. Instead, only selected examples will be discussed to illustrate the nature of the 
references' claims. 
Principal High School, stated: 
It is with great pleasure that I write this letter of recommendation for [the petitioner] who 
currently teaches Science at High School. 
The petitioner has a great gift for meeting students where they are and taking them to where 
she needs them to be. Students respect her and appreciate all of the hard work she puts into 
lesson planning, evaluating their work, and interacting with them during instruction. Her 
attention to detail and organizational skills have made her indispensable to the faculty and 
staff at High School. 
[The petitioner] has received good evaluations and her abilities cannot be overstated. She is 
tireless in her efforts to create a great culture and community in our school and workplace. 
Ms. comments favorably on the petitioner's teaching qualities, but Ms. does not 
indicate how the petitioner's impact or influence as a teacher is national in scope. In support of Ms. 
comment that the petitioner "has received good evaluations." the petitioner submitted 
copies of her "satisfactory" teacher evaluations from Middle School and 
High School. The petitioner, however, 
did not submit documentary evidence comparing 
her individual performance with other teachers. Moreover, there is no documentary evidence 
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showing that the petitioner's specific work has had significant impact outside of the schools where 
she has taught. 
Co-chair of the Special Education Department, ___ __. High School, stated: 
[The 
petitioner] is a former colleague. We worked together on the Special Education 
Department at High School for three years. Throughout those years, [the 
petitioner] served as both intensive and collaborative (co-teacher) instructor in the areas of 
Mathematics and Science. 
As a Special Educator, she was required to complete extensive paperwork, maintain a 
caseload, monitor student's progress toward mastery of their Individualized Education Plan 
(IEP), participate in meetings, administer formal assessments, compile data to include in 
reports and analyze student performance on the assessments in order to incorporate that data 
into his/her IEP. These duties are expected in conjunction with the daily responsibilities of a 
regular educator - preparing lesson plans, grading papers, presenting material to the students 
effectively, tutoring before/after school as needed and communicating with parents. 
* * * 
Her lessons exhibited rigor and highly motivated the students! Her departure from 
was a loss to students and her colleagues. 
Ms. comments on the petitioner's duties and skill as a motivator, but Ms. does not 
indicate that the petitioner's work has had, or will continue to have, an impact outside of her 
classrooms and the local school system that employed her. 
Special Educator and Math Teacher, High School, stated: 
[The 
petitioner] has been my colleague and co-teacher as Special Ed/Math teacher here in 
High School for more than 3 years. In my judgment, her intelligence is well 
above average, and she understands both students and learning process. She has a thorough 
knowledge of the curriculum, which combined with her excellent verbal facility, enables her 
to express herself and present topics very well. 
She has a creative imagination that allows her to make classroom works interesting to 
students. [The petitioner] possesses the physical energy and the drive to do a good job, 
however demanding in school setting. Her personal characteristics such as patience, 
consideration, emotional stability, and good judgment are great assets. 
Mr. praises the petitioner's skills as an educator, but he fails to provide specific examples of 
how the petitioner's work has influenced the field as a whole. 
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Dr. Mathematics Teacher, High School, stated: 
fThe netitioner] has been my fellow teacher in Mathematics for about four years at 
High School. During this time, she was a dependable and effective teacher in 
the Special Education Department of the school. 
[The petitioner] was an asset to the department. She was always ready and willing to assist 
with any task in improving the academic performance of students. In addition, [the 
petitioner] is highly motivated in applying various teaching strategies to suit the learning 
needs of her students; hence, enhancing student learning. 
While Dr. describes the petitioner as dependable, effective, and highly motivated, Dr. 
comments do not set the petitioner apart from other competent and qualified teachers, or 
explain how the petitioner's work has impacted the field beyond her school. 
Dr. Vice President of Academic Affairs University, ....._ __ _ stated: 
It is a genuine pleasure and admiration for me to endorse [the petitioner], a masteral [sic] 
degree holder of this university. She is a MAT [Master of Arts in Teaching] graduate and 
had been involved in many research undertakings. She had rendered countless hours of her 
time to be the best that she could be. At all times, I found her to be dependable, reliable, 
hard-working, conscientious, honest, peace-loving. She would be a tremendous asset in your 
country and has my highest recommendation. During this entire period, she has provided 
excellent service. 
Dr. asserted that the petitioner was "involved in many research undertakings," but Dr. 
fails to specifically identify the petitioner's research projects or explain how they influenced the field 
on a national level. 
The petitioner submitted additional letters from the administration and faculty at 
University, stating that the petitioner worked as a "regular faculty member hapdling 
Mathematics, Sciences and Professional Engineering subjects." The letters provide information 
relating to the petitioner's work teaching college courses and heading the Mathematics Department 
at University, but they fail to provide specific examples of how the petitioner's work has 
influenced the field beyond the university. Regardless, the record does not indicate that the 
petitioner continues to perform similar activities in a university setting in the United States. The 
petitioner's past duties on a university's faculty are not necessarily a reliable guide for what the 
petitioner will do as a high school teacher. 
The petitioner submitted the following: 
1. Certificate of Recognition from University, congratulating the 
petitioner for "Perfect Attendance" in the first semester (2001-2002); 
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2. Certificate of Recognition from University, congratulating the 
pebtioner for "Perfect Attendance" for two academic years (2002-2003 and 2003-2004); 
_ 3. Her membership card for th _ Education Association; 
4. Her membership certificate for the Civil Engineers; and 
5. Her membership certificate for the American Society of Civil Engineers. 
Professional memberships and institutional recognition are all elements that can contribute toward a 
finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii)(E) and (F), respectively. As noted 
previously, exceptional ability in the sciences, the arts or business is not sufficient to warrant the 
national interest waiver. The plain language of section 203(b )(2)(A) of the Act indicates that aliens 
of exceptional ability are subject to the job offer requirement (including alien employment 
certification). Particularly significant awards may serve as evidence of the petitioner's impact and 
influence on her field, but the petitioner has failed to demonstrate that the awards she received for 
"perfect attendance" have more than local or institutional significance. In addition, there is no 
evidence showing that the petitioner's professional memberships are indicative of influence on the 
field as a whole. 
The petitioner also submitted numerous certificates of participation, completion, and attendance for 
training courses, seminars, and conferences relating to her professional development. While taking 
courses and attending seminars and conferences are ways to increase one's professional knowledge 
and to improve as a teacher, there is nothing inherent in these activities to establish eligibility for the 
national interest waiver. 
The director issued a request for evidence on July 31, 2012. In that notice, the director 
acknowledged the intrinsic merit of the petitioner's occupation, but stated that the petitioner had not 
satisfied the other prongs of the NYSDOT national interest test. 
In response, counsel asserted: "The academic performance of each American student is weighed 
against the rest across the nation for each grade level by the United States Department of Education 
for the purpose of determining their competitive standing globally which crucially gauges the 
prospective economic condition of the United States of America." Counsel further stated: 
[T]he most tangible national benefit to be derived from a 'Highly Qualified 
Mathematics Teacher' is recreating a society of responsible and values-driven citizens 
including a highly productive and well-balanced work force that would translate the 
current recession adversely affecting the United States of America into a formidable 
economy again. 
Counsel did not explain how the actions of one teacher would contribute significantly to nationwide 
social reform and economic recovery. 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the Department of Labor considers a bachelor's degree, rather than a Ph.D. or master's 
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degree, to be the mm1mum educational requirement for a schoolteacher. In addition, counsel 
contended that Congress set new standards by passing the No Child Left Behind Act (NCLBA), 
which established the category of "highly qualified teachers." 
Section 9101(23) of the NCLBA, 20 U.S.C. § 7801(23), defines the term "highly qualified" in 
reference to teachers . Sections 9101(23)(B) and (C) of the NCLBA require that a "highly qualified" 
teacher "holds at least a bachelor's degree." Section 9101(23)(B) of the NCLBA also refers to 
"highly qualified" teachers who are "new to the profession." Thus, the petitioner's master's degree, 
Ph.D. degree, and more than ten years of expelience are not required for "highly qualified" status 
under the NCLBA. Counsel, therefore, did not support the claim that the labor certification process 
frustrates the NCLBA's mandate for schools to employ "highly qualified teachers." 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.P.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contained in the record of proceeding. See 8 C.P.R. § 103.2(b)(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher in Public School System." 
The petitioner submitted President George H.W. Bush's "Remarks on Signing the Immigration Act 
of 1990," a March 14, 2008 article in The New York Times entitled "Report Urges Changes in 
Teaching Math," an article entitled "Importance of Science and Math Education," an article entitled 
"STEM Sell: Are Math and Science Really More Important Than Other Subjects?," the written 
testimony of Microsoft's Bill Gates before the Committee on Science and Technology of the United 
States House of Representatives (March 12, 2008), a copy of Section 1119 of the NCLBA, a 
statement by U.S. Secretary of Education Arne Duncan on the National Assessment of Educational 
Progress Reading and Math 2011 Results, infotmation about STEM fields printed from the online 
encyclopedia Wikipedia, an article entitled "Effective Programs in Middle and High School 
Mathematics: A Best-Evidence Synthesis," an article discussing the highlights from the Trends in 
International Mathematics and Science Study (2007), and information about "High School Teachers" 
from Department of Labor's Occupational Outlook Handbook. As previously discussed, general 
arguments or information regarding the importance of a given field of endeavor, or the urgency of an 
issue facing the United States, cannot by themselves establish that an individual alien benefits the 
national interest by virtue of engaging in the field. NYSDOT, 22 I&N Dec. at 217. Such assertions 
address only the "substantial intrinsic merit" prong of NYSDOT s national interest test. None of the 
preceding documents demonstrate that the petitioner's specific work has influenced the field as a 
whole. 
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The petitioner also submitted a copy of her September 2012 contract with "the LOCAL BOARD OF 
EDUCATION OF COUNTY," but the contract post-dates the filing of the petition. 
Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date 
after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. Regardless, the petitioner's receipt of this local teaching contract does not 
establish that the benefits of her work will be national in scope and that she will serve the national 
interest to a substantially greater degree than would an available United States worker having the same 
minimum qualifications. 
In addition, the petitioner submitted her "satisfactory" teacher evaluations from _ 
Middle School and High School, an outstanding faculty performance rating from 
University (2007), a 2004-2005 "Summary of Student Opinionnaire on Faculty Teaching" from 
University reflecting a highly satisfactory rating, and a 2005-2006 "Summary of Student 
Opinionnaire on Faculty Teaching" from University reflecting a highly satisfactory rating. 
Once again, the petitioner did not submit evidence comparing her individual performance with other 
teachers and faculty. Moreover, there is no documentary evidence showing that the petitioner's 
specific work has had significant impact outside of the schools where she has taught. 
The petitioner's response also included a letter from Dr. Industrial Engineering 
Coordinator. University, stating: 
I have the distinct pleasure of having [the petitioner] as my teacher at University, 
during the 1999-2000 academic years. I have witnessed her unswerving 
dedication and commitment to make a lasting difference in every student's life that was 
under her. She is intelligent, knowledgeable, and caring teacher who brings out the best in 
every learner. She is a tremendous teacher and made an impact in my studies. I am now a 
successful Industrial Engineer with Master's Degree in Mathematics and I owe this success 
through her inspiration and guidance. 
Dr. praises the petitioner's qualities as a teacher, but Dr. fails to provide specific 
examples of how the petitioner's work has influenced the field as a whole. 
The petitioner also submitted a letter from 
University, stating: 
, Dean, College of Engineering, 
[The petitioner] is enthusiastic and creative, yet flexible. She was quick to adapt to the way 
we do things here at University, but at the same time she was able to put her own 
spin on things and enhance the existing curriculum. She is an excellent role model for the 
students. [The petitioner] works cooperatively with school administrators, special support 
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personnel, colleagues, and parents. She complies with rules, regulations, and policies of 
governing agencies and supervisory personnel. 
Dean and Dr. comments do not indicate that the petitioner's work has impacted 
the field beyond University. Congress could have created a blanket waiver for university 
faculty, mathematics, or special education teachers, but did not do so. Instead, the job offer 
requirement applies to members of the professions (such as mathematics teachers) and to aliens of 
exceptional ability (i.e., foreign national workers who show a degree of expertise significantly above 
that ordinarily encountered in a given field). The preceding witnesses, however sincere their praise 
of the petitioner's teaching skills, did not demonstrate that the petitioner's work has had a significant 
impact or influence outside of the institutions that employed her. They did not address the NYSDOT 
guidelines which, as published precedent, are binding on all USCIS employees. See 8 C.P.R. 
§ 103.3(c). That decision cited school teachers as an example of a profession in a field with overall 
national importance (education), but in which individual workers generally do not produce benefits 
that are national in scope. Id. at 217 n.3. 
The director denied the petition on November 3, 2012. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director indicated that the petitioner had not shown how her work as a public school 
teacher "will be national in scope" or "would benefit the United States on a national scale." 
On appeal, counsel asserts that section 203(b)(2)(B)(i) of the Act does not contain clear guidance on 
eligibility for the waiver, and claims that Congress subsequently filled that gap with the passage of 
the NCLBA. Counsel notes that Congress passed the NCLBA three years after the issuance of 
NYSDOT as a precedent decision, and claims that the NCLBA "has in effect engraved the missing 
definition upon the concept of 'in the national interest"' through such legislation. Counsel, however, 
identifies no specific legislative or regulatory provisions in the NCLBA that exempt school teachers 
from NYSDOT or reduce its impact on them. Counsel does not support the assertion that the 
NCLBA modified or superseded NYSDOT; that legislation did not amend section 203(b )(2) of the 
Act. The unsupported assertions of counsel do not constitute evidence. 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). In contrast, section 5 of the Nursing Relief for 
Disadvantaged Areas Act of 1999, Pub. L 106-95 (November 12, 1999), specifically amended the 
Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to create special waiver 
provisions for certain physicians. Because Congress not only can amend the Act to clarify the 
waiver provisions, but has in fact done so in direct response to NYSDOT, counsel has not shown that 
the NCLBA indirectly implies a similar legislative change. 
Counsel further states: 
With respect to the E21 visa classification, INA § 203(b)(2)(A) provides in relevant 
part that: "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 
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exceptional ability in the sciences, arts, or business, will substantially benefit 
prospectively the national ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States. 
Counsel, above, highlights the phrase "national ... educational interests," but the very same quoted 
passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are 
sought by an employer in the United States." Counsel has, thus, directly quoted the statute that 
supports the director's conclusion. By the plain language of the statute that counsel quotes on 
appeal, an alien professional holding an advanced degree is presumptively subject to the job offer 
requirement, even if that alien "will substantially benefit prospectively the national ... educational 
interests ... of the United States." Neither the Immigration and Nationality Act nor the NCLBA, 
separately or in combination, create or imply any blanket waiver for teachers. 
Counsel asserts the "USCIS erred in disregarding evidence 
demonstrating the national scope of 
petitioner's proposed benefit through her effective role in serving the national educational interest of 
closing the achievement gap." The record, however, contains no evidence that the petitioner's 
efforts have significantly closed that gap. The national importance of "education" as a concept, or 
"educators" as a class, does not establish that the work of one teacher produces benefits that are 
national in scope. See NYSDOT, 22 I&N Dec. 217, n.3. A local-scale contribution to an overall 
national effort does not meet the NYSDOT threshold. The aggregate national effect from thousands 
of teachers does not give national scope to the work of each individual teacher. 
Counsel continues: 
The national priority goal of closing the achievement gaps between minority and nonminority 
students, and between cl.isadvantaged and more advantaged children is especially relevant in 
the context of and High School. The 2012 MSA [Maryland State 
Assessment] Reading results show that out of the 24 Maryland school districts 
ranked near the bottom at the 'All Student' level for each MSA-covered grade level .... 
The petitioner has worked for since 2007, and thus had been there for a number of years 
before the administration of the 2012 MSA tests. Counsel does not explain how the 2012 MSA 
results for (which indicate low rankings relative to other Maryland school districts) establish 
that the petitioner has played an "effective role ... closing the achievement gap." 
Counsel asserts that "the Director has easily dismissed the [petitioner's] incomparable 
accomplishments," but there is no documentary evidence showing that the petitioner's 
accomplishments are "incomparable" as claimed. In addition, counsel comments that NYSDOTs 
guidelines amount to "hypotheticals [that] hold no water." By law, the USCIS does not have the 
discretion to reject published precedent. See 8 C.P.R. § 103.3(c), which indicates that precedent 
decisions are binding on all USCIS officers. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Counsel claims that "the Immigration Service is requiring more from the beneficiary's credentials 
and tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. As previously discussed, the threshold for 
exceptional ability is distinct from the threshold for the national interest waiver. It remains that the 
petitioner's evidence does not facially establish eligibility for the national interest waiver. The 
director did not require the petitioner to establish exceptional ability in her field. Instead, the 
director observed that the petitioner's evidence does not show that the petitioner's work has had an 
influence beyond the school districts where she has worked. 
Much of the appellate brief consists of general statements about educational reform and repeats 
earlier claims regarding perceived flaws in the labor certification process. It is within Congress's 
power to establish a blanket waiver for teachers, "highly qualified" or otherwise, but contrary to 
counsel's assertions, that waiver does not yet exist. 
It is evident from a plain reading of the statute that engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
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. See 
NYSDOT, 22 I&N Dec. 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."). 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. 
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 appeal is dismissed.