dismissed EB-2 NIW Case: Education

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Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF M-C-L- DATE: JAN. 4, 2016 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a middle school math teacher, seeks classification as a member of the professions 
holding an advanced degree, and 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. See Section 203(b )(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Director, Texas Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
I. LAW 
Section 203(b) ofthe 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 record reflects that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in the instant petition is whether the Petitioner has established that a waiver 
of the job offer requirement, and thus a labor certification, is in the national interest. 
Matter of M-C-L-
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, 101 st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P .L. 
101-649, 104 Stat. 4978 (Nov. 29; 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991 ), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing 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. 
Matter of New York State Dep't ofTransp., 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOI), set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an area of 
substantial intrinsic merit. Id at 217. Next, a petitioner must show that the proposed benefit will be 
national in scope. Id Finally, the petitioner seeking the waiver must establish that he or she will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id at 217-18. · 
While the national interest waiver hinges on prospective national benefit, a petitioner must demonstrate 
that his or her past record justifies projections of future benefit to the national interest. !d. at 219. A 
petitioner's assurance that he or she will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. Furthermore, eligibility for the waiver must rest with the 
petitioner's own qualifications rather than with the position sought. Assertions regarding the overall 
importance of a petitioner's area of expertise are insufficient to show eligibility for a national 
interest waiver. !d. at 220. At issue is whether the Petitioner's contributions in the field are of such 
significance that she merits the special benefit of a national interest waiver, a benefit separate and 
distinct from 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. 
II. ANALYSIS 
The Petitioner has established that she is a member of the professions holding an advanced degree 
and that her work as a teacher is in an area of substantial intrinsic merit. It remains, then, to 
determine whether the proposed benefits of the Petitioner's work will 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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Matter of M-C-L-
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on March 27, 2012. As 
evidence, the Petitioner submitted various documents, including copies of her academic credentials; 
letters from colleagues, students, and parents; certificates; and confirmation of additional training. 
Educational degrees, occupational experience, licenses, and professional certifications, and 
recognition for achievements are elements that can contribute toward a finding of exceptional ability. 
See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), and (F), respectively. As the Petitioner qualifies for the 
classification sought as a member of the professions with an advanced degree, the issue of 
exceptional ability is moot. Pursuant to section 203(b )(2)(A) of the Act, foreign nationals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. NYSDOT, 22 I&N Dec. at 218, 222. Therefore, 
whether a given individual seeks classification as a foreign national of exceptional ability, or as a 
member of the professions holding an advanced degree, that individual cannot qualify for a waiver 
based on a degree of expertise significantly above that ordinarily encountered in her field of 
expertise. The national interest waiver is an additional benefit, separate from the classification 
sought, and therefore eligibility for the underlying classification does not demonstrate eligibility for 
the additional benefit of the waiver. For the reasons discussed below, the record confirms that she is 
a dedicated teacher who has pursued professional development and is highly regarded by her 
students, parents, and colleagues. The materials do not, however, establish that her work has or will 
result in significant benefits beyond her own classroom or set her apart from other competent and 
qualified teachers. Without evidence demonstrating that her work has affected the field as a whole, 
employment in a beneficial occupation such as a teacher does not, by itself, qualify the Petitioner for 
the national interest waiver. 
On July 9, 2012, the Director issued a request for evidence (RFE). The Director acknowledged that 
the Petitioner is "a competent teacher whose skills and abilities are of value to her current 
employer," but found that she did not establish how her work "would benefit the United States on a 
national scale" or how "the national interest would be adversely affected by the requirement of a 
labor certification." 
In response, the Petitioner provided information, including materials regarding the importance of 
mathematics and national education goals, such as articles, a transcript of Bill Gates' 2008 testimony 
before the Committee on Science and Technology, research papers, President George Bush's 
remarks on the Immigration Act of 1990, and a 2011 statement by U.S. Secretary of Education Arne 
Duncan. While these initiatives address the intrinsic merit of education, they do not exempt 
educators from NYSDOT or reduce its impact on them, and do not explain the impact of one teacher 
at the national level. The Petitioner offered no direct support that any of the above materials pertain 
to the adjudication of national interest waiver applications. In contrast, section 5 of the Nursing 
Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (Nov. 12, 1999), specifically amended 
the Act by adding section 203(b )(2)(B)(ii) to create special waiver provisions for certain physicians. 
The Petitioner has not demonstrated that other legislation, including the No Child Left Behind Act of 
2001 (NCLBA), Pub. L. 107-110, 115 Stat. 1425 (Jan. 8, 2002), contains a similar legislative change 
to the national interest waiver provision at section 203(b )(2)(B)(i) of the Act. As U.S. Citizenship 
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Matter of M-C-L-
and Immigration Services (USCIS) does not have discretion to ignore binding precedent under 
8 C.F.R. § 103.3(c), the Petitioner's eligibility must be determined according to the analysis set forth 
inNYSDOT. 
The Director denied the petition on October 19, 2012, finding that the Petitioner had not overcome 
the deficiencies discussed in the RFE. On appeal, the Petitioner asserts that the Director erred by 
requiring the Petitioner to meet the exceptional ability standard. The decision, however, 
acknowledged that the Petitioner is seeking classification as an advanced degree professional and 
satisfies the requirements based upon her bachelor's degree plus five years of progressive 
experience. 8 C.F.R § 204.5(k)(3)(i). 
The Petitioner also asserts that her "qualifications could not be articulated" on a labor certification 
and that the process does not measure "the competence, reliability, passion and effectiveness of the 
teacher." 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 she 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. 
As previously stated, in the instant petition, the only issues are whether the proposed benefits of the 
Petitioner's work will 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. The record does 
not, however, reveal that the work' of one teacher significantly contributes to national educational 
goals, nor has the Petitioner demonstrated that her work as an individual will further those objectives 
on a nationally significant level. This finding is consistent with NYSDOT, which cited an elementary 
school teacher as an example of a meritorious occupation that would lack the requisite national 
scope to establish eligibility. · 
Finally, under the third prong of the NYSDOT analysis, a petitioner must demonstrate that he or she 
will serve the national interest to a substantially greater degree than would an available U.S. worker 
having the same minimum qualifications. Id. at 218. Such a showing does not, as the Petitioner 
contends, require specific evidence of the accomplishments of other individuals in her field, nor does 
it require her to meet evidentiary requirements for extraordinary ability, as found at 8 C.F.R. 
§ 204.5(h)(3). Rather, a petitioner must have a past record that "justifies projections of future 
benefit to the national interest" by exhibiting "some degree of influence on the field as a whole." Id. 
at 219, n. 6. In this instance, the Petitioner has submitted documentation of her work at the local 
level, including letters that reflect the positive impact she has had on her own students. The record 
does not establish, however, that she has had a broader influence within her field. 
III. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced 
degree professional or individual of exceptional ability should be exempt from the requirement of a 
job offer based on national interest. For the reasons discussed above, we find the record insufficient 
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Matter of M-C-L-
to confirm that either the scope of the Petitioner's proposed work or her past record of achievement 
is at a level sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the Petitioner. While a petitioner need not demonstrate notoriety on the 
scale of national acclaim, the national interest waiver contemplates that his or her influence be 
national in scope. NYSDOT, 22 I&N Dec. at 217, n.3. Considering the record, the Petitioner has not 
established by a preponderance of the evidence that a waiver of the requirement of an approved labor 
certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-C-L-, ID# 14956 (AAO Jan. 4, 2016) 
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