dismissed EB-2 NIW Case: Education

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 0 9 2014 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 law nor establ ish 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, 
JJDt!t r/n ~ 
{" Ron Rosenberg 
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 I-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as an 
elementary school mathematics teacher. The petitioner has taught for 
since 2007. At the time of filing, the petitioner was teaching at 
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 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 record reflects 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 defme 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). 
A supplementary notice regarding the regulations implementing the hnmigration 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. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must 
be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he 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. ld. Finally, the petitioner seeking the waiver must establish that he 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, the petitioner must establish 
his past record justifies projections of future benefit to the national interest. /d. at 219. The petitioner's 
subjective assurance that he will, in the future, serve the national interest cannot suffice to establish 
prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the petitioner, rather th~ to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The petitioner has established that his work as an elementary school mathematics teacher is in an 
area of substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of 
the petitioner's work would be national in scope and whether he will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of the petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. Id. at 220. Moreover, it cannot 
suffice to state that the petitioner 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. 
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The petitioner filed the Form I-140 petition on October 7, 2011. In a September 29, 2011 letter 
accompanying the petition, counsel asserted that the petitioner's national interest waiver is based on 
his Doctor of Education degree, Master of Arts degree in Education, Bachelor of Secondary 
Education degree, Certificate of Appreciation for participating in the 
during the first semester 1994-95, over twenty­
five years of progressive teaching experience, and annual income of $75,000. Academic degrees, 
occupational experience, salary, and recognition for achievements are elements that can contribute 
toward a finding of exceptional aqility. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (D), and (F), 
respectively. Exceptional ability, in turn, is not self-evident grounds for the waiver. See section 
203(b)(2)(A) of the Act. The U.S. Citizenship and Immigration Services (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 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 waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his 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. 
In his letter accompanying the petition, counsel did not mention the NYSDOT guidelines or explain 
how the petitioner meets them. The record does not show how the petitioner's work will impact the 
field beyond With regard to the petitioner's teaching duties, there is no evidence 
establishing that the benefits of his work would extend beyond his elementary school students such 
that they will have a national impact. NYSDOT provides examples of employment where the 
benefits would not be national in scope: 
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. at 217, n.3. In the present matter, the petitioner has not shown the benefits of his impact as a 
elementary school mather teacher beyond the students at his school and, therefore, that his proposed 
benefits are national in scope. In addition, the record lacks specific examples of how the petitioner's 
work as a teacher has influenced the education field on a national level. At issue is whether this 
petitioner's contributions in the field are of such significance that he merits the special benefit of a 
national interest waiver, a benefit separate and distinct from the visa classification he 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. 
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The petitioner submitted letters of support from his principal at 
National Board Certified Teacher from , and a parent whose two children attend 
Principal, 
------------------------~~ 
[The petitioner] has been a Math Resource teacher at 
where he has received satisfactory ratings each year. 
stated: 
since December 2008 
[The 
petitioner] consistently plans and delivers engaging, hands-on lessons aligned with math 
standards and curriculum frameworks. He is a master at integrating technology into his 
lessons to help students build their math skills and background. He has improved classroom 
management strategies tremendously since arriving at the school. 
[The petitioner] works cooperatively and collaboratively with the remainder of the staff to 
plan for instruction. He has also developed outstanding relationships with the remainder of 
the staff as well as the students and families at the school. 
[The petitioner] serves as the technology coordinator at the school since he has an extensive 
background and knowledge in this area. He works collaboratively with the county 
technology specialists to ensure that hardware is up and running for teachers to utilize. He 
also attends area technology meetings and has the responsibility of bringing the information 
back to the school to share with administration and staff. 
[The petitioner] participated in our Extended Learning Program as well as our 
this year. He worked with students in grades 3-6 to provide additional instruction 
on standards that students would be assessed on as part of MSA [Maryland School 
Assessment] . 
[The petitioner] is always willing to assist in whatever capacity is needed at the school. He 
has participated in Family Math Nights, Multicultural functions, MSA pep rallies, etc. 
Ms. comments on the petitioner's effectiveness as an educator and his activities at 
a 
but she does not indicate how the petitioner's impact or influence as 
school teacher is national in scope. In addition, Ms. fails to provide specific examples of 
how the petitioner's work has influenced the field as a whole. 
a National Board Certified Teacher, and Academic Dean for Science, 
Technology, Engineering and Mathematics (STEM), stated: 
[The petitioner] currently serves in as a Mathematics Resource 
Specialist where he has bolstered the mathematics program, improved student learning and 
provided needed intervention and acceleration programs for the last 3 years. 
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In the role of Mathematics Resource Specialist, [the petitioner] has proven his ability to 
encourage and provide direction to other teachers and to make personal cmmections with 
students, assessing their current academic ability and competency then working steadfastly to 
elevate and propel them to more advanced levels of performance. [The petitioner] 
understands the importance of using data to make instructional decisions to improve student 
achievement. 
[The petitioner] has elevated mathematics learning at by providing 
intervention support to all students while infusing technology. He has worked tirelessly to 
create and implement mathematics content that provides remediation for some and 
enrichment for others. The students that are privileged to work with [the petitioner] 
consistently show improvement on standardized tests, demonstrate a deeper mathematical 
understanding of mathematics content, and more readily make connections between 
disciplines and the real-world. 
[The petitioner] approaches all of his responsibilities in a highly professional, proactive, 
empathetic and organized manner, from greeting students every morning and initiating math 
skills review in the hallway with students to developing and refining curriculum and lessons 
for realizable improvements in student performance. He is an exceptional mathematics 
teacher, intervention specialist, curriculum writer and a goal-oriented educator. 
Ms. comments on the petitioner's work with the mathematics program, improvement of 
student performance, positive interaction with other teachers, professionalism, and favorable 
teaching qualities, but she does not indicate that the petitioner's work has had, or will continue to 
have, an impact beyond and the system that employed him. 
While Ms. speaks highly of the petitioner, her observations fail to demonstrate that the 
petitioner's work has influenced the field as whole. 
a parent whose two children attend , stated that the 
petitioner assisted with "safety issues and some language barriers that [may] exist during dismissal." 
In addition, Ms. states that the petitioner remains "outside until all the students have left or 
parents have arrived." Ms. observations fail to demonstrate that the petitioner's work has 
influenced the field as whole, or that the petitioner has or will benefit the United States to a greater 
extent than other similarly qualified elementary school teachers. 
The petitioner's three references praise his personal character and abilities as an educator, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of the school 
system where he has taught. They also do not address the NYSDOT guidelines which, as published 
precedent, are binding on all USCIS employees. See 8 C.F.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. NYSDOT at 
217, n.3. 
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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 of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered 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 the petitioner's eligibility for the 
benefit sought. !d. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the his eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
In addition to the reference letters, the petitioner submitted the following: 
1. A Doctor of Education degree; 
2. A Master of Arts degree in Education; 
3. A Bachelor of Secondary Education degree; 
4. Academic transcripts; 
5. A Certificate of Appreciation from the Vice President of the Philippines acknowledging 
the petitioner's participation as a Teacher Counterpart/ Adviser in the Philippine Drug 
Abuse Resistance Education Program at during the first semester 
(1994-1995); 
6. A March 17, 1994 letter from the Vice President of the Philippines thanking the 
petitioner for his help in the pilot phase of the Philippine Drug Abuse Resistance 
Education Program at during the second semester (1993-1994); 
7. A Certificate of Achievement from the principal of for 
the petitioner having completed his second year of teaching at the school (June 15, 2009); 
8. A certificate from the principal of for "making a 
difference in the lives of the students" at the school (June 16, 2010); 
9. A Certificate of Appreciation from the principal of for 
"time and devotion to Saturday Academy teaching 5th grade math at 
'(March 12, 2011); 
10. A Certificate of Appreciation from the principal of for 
"time and devotion to Extended Learning Opportunities Program teaching 3ra grade math 
at '(March 17, 2011); 
11. A certificate from the principal of thanking the petitioner 
for his contribution to the school's landscaping project on October 22, 2009; 
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12. A Maryland Educator Certificate; and 
13. A Form W-2 Wage and Tax Statement for 2010 reflecting earnings of $74,439.80. 
Again, academic records, professional certifications, salary, and recognition for achievements are all 
elements that relate to a finding of exceptional ability, but exceptional ability is not sufficient to 
establish eligibility for 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 his field, but the petitioner has failed to demonstrate that the 
awards he received are nationally significant awards in the field of mathematics education. There is 
no documentary evidence showing that items 1 through 13 are indicative of the petitioner's influence 
on the field of elementary education at the national level. 
The director issued a request for evidence on July 12, 2012, instructing the petitioner to submit 
evidence demonstrating that the benefits of his proposed employment would be national in scope and 
that he "has a past record of specific prior achievement with some degree of influence on the field as 
a whole." 
In response, the petitioner submitted a March 14, 2008 article in The New York Times entitled 
"Report Urges Changes in Teaching Math," an article in Computer Science Technology 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), President George H.W. Bush's "Remarks on Signing the Immigration Act of 
1990," a copy of Section 1119 of the No Child Left Behind Act (NCLBA), a statement by U.S. 
Secretary of Education Arne Duncan on the National Assessment of Educational Progress Reading 
and Math 2011 Results, information about STEM fields printed from the online encyclopedia 
Wikipedia, an article entitled "Effective Programs in Middle and High School Mathematics: A Best­
Evidence Synthesis," and an article discussing the highlights from the Trends in International 
Mathematics and Science Study (2007). 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 benefits the national interest by virtue of 
engaging in the field. NYSDOT, 22 I&N Dec. at 217. Such assertions and information address only 
the "substantial intrinsic merit" prong of NYSDOTs national interest test. None of the preceding 
documents demonstrate that the petitioner's specific work as an elementary school teacher has 
influenced the field as a whole. 
The director denied the petition on April 11, 2013. The director indicated that the petitioner had not 
shown that the proposed benefits of his work as an elementary school math teacher will be national in 
scope. The director also determined the petitioner had failed to submit "evidence that demonstrates that 
he has a past record of prior achievements with some degree of influence on the field as a whole." The 
director therefore concluded 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. 
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On appeal, counsel asserts that "USCIS erred in g1vmg insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 [NCLBA] as the guiding 
principle rather than the precedent case" NYSDOT. With regard to following the guidelines set forth 
in NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 8 
C.P.R.§ 103.3(c). 
Counsel argues that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and claims that "[t]he obscurity in the law that NYSDOT sought to address has 
been clarified," because "Congress has spelled out the national interest with respect to public 
elementary and secondary school education" through such legislation. In addition, counsel contends 
that "the NCLB Act and the Obama Education Programs, taken collectively, provide the underlying 
context for the adjudication of a national interest waiver application made in conjunction with an 
E21 visa petition for employment as a Highly Qualified Teacher in the public school sector." 
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. Counsel identifies no specific legislative or 
regulatory provisions that exempt school teachers from NYSDOT or reduce its impact on them. The 
unsupported assertions of counsel do not constitute evidence. See 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 
Act by adding section 203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. 
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 contains 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 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 individual's "services 
... are sought by an employer in the United States." By the plain language of the statute that counsel 
quotes on appeal, a professional holding an advanced degree is presumptively subject to the job offer 
requirement, even if that individual "will substantially benefit prospectively the national ... 
educational interests ... of the United States." Again, neither the Act nor the NCLBA create or 
imply any blanket waiver for highly qualified foreign teachers. As members of the professions, 
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teachers are included in the statutory clause at section 203(b )(2)(A) that includes the job offer 
requirement. 
Counsel quotes remarks made by then-President George H.W. Bush when he signed the Immigration 
Act of 1990, which created the national interest waiver: "This bill provides for vital increases for 
entry on the basis of skills, infusing the ranks of our scientists and engineers and educators with new 
blood and new ideas." Counsel interprets this passage to mean that Congress created the national 
interest waiver for "highly qualified" educators. The Immigration Act of 1990, however, was not 
restricted to the creation of the waiver. It was, rather, an overhaul of the entire immigration 
structure, creating new employment-based immigrant classifications to replace the "third preference" 
and "sixth preference" classifications previously in place. "[S]cientists and engineers and educators" 
are all members of the professions who, under the terms dictated by Congress in the Immigration 
Act of 1990 (as it amended the Act), are all subject to the job offer requirement. 
Counsel asserts that "USCIS erred in disregarding evidence demonstrating the national scope of the 
petitioner's proposed benefit through her [sic] 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 in or nationally. 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. NYSDOT at 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 disadvantaged and more advantaged children is 
especially relevant in the context of and [the petitioner's] assigned school. The 
2012 MSA 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 0 0 0 • 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO [Annual Measurable Objectives] targets 
at the "All 
Student" 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 in "closing the achievement gap." 
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Counsel asserts that the petitioner "is an effective teacher in raising student achievement in STEM," 
but he cited no documentary evidence to support the claim. As previously discussed, the 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 
534, n.2; Matter of Laureano, 19 I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
In addition, while counsel asserts that the petitioner has "proven success in raising proficiency of his 
students," counsel did not point to specific STEM test results or other documentary evidence in the 
record to support the assertion. Regardless, there is no documentation demonstrating that the 
petitioner's work has had an impact or influence outside of the schools where he has taught. 
Counsel points to the petitioner's awards (items 5, 7, 8, 9, and 10) as evidence of his "past history of 
achievement." As previously discussed, the petitioner's awards do not show that his work has had a 
wider impact on the field of elementary mathematics education, or that his work has otherwise 
influenced the field as a whole. 
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers and that USCIS "should have 
presented its own comparable worker." The NYSDOT guidelines, however, do not require an item­
by-item comparison of the petitioner's credentials with those of qualified United States workers. 
The key provision is that the petitioner must establish a record of influence on the field as a whole. 
Moreover, there is no provision in the statute, regulations, or NYSDOT requiring the director to 
specifically identify another equally qualified school teacher. 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). 
Counsel contends that "the Immigration Service is requiring more from the beneficiary's credentials 
[ 
] tantamount to having exceptional ability," but an individual is not required to qualify as an alien 
of exceptional ability in order to receive the national interest waiver. As previously discussed, the 
requirements for exceptional ability are separate from the threshold for the national interest waiver. 
It remains that the petitioner's evidence does not establish eligibility for the national interest waiver. 
The director did not require the petitioner to establish exceptional ability in his field. Instead, the 
director determined that "the petitioner has not established that a waiver of the job offer and labor 
certification requirement will be in the national interest of the United States." 
Counsel states that while the NCLBA "requirements set minimum standards for entry into teaching 
of core academic subjects, they have not driven strong improvements in ... the effectiveness of 
teachers in raising student achievement." However, assertions regarding the need for educational 
reform in the United States only address the "substantial intrinsic merit" prong of NYSDOTs 
national interest test. In addition, counsel quotes a study that concluded the "Teach For America" 
program "rarely had a positive impact on reading achievement." The record, however, does not 
include a copy of the study. Once again, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena at 534, n.2; Matter of Laureano at 3, n.2; Matter of Ramirez­
Sanchez at 506. Regardless, counsel does not show that the petitioner's individual teaching efforts, 
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after several years in the United States, have set him apart from other educators with regard to 
raising student achievement in or nationally. 
Counsel emphasizes "the critical timeline" and "time-sensitive obligation" for hiring "Highly 
Qualified Teachers,"' and claims that the labor certification process poses a "dilemma" for the 
petitioner because he possesses qualifications and "years of dedicated service" that "could not be 
articulated in conformity with the process regulations." 
Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." Briefly, by the 
statutory definition, a "Highly Qualified" elementary school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least 
a bachelor's degree; and 
• has demonstrated, by passing a rigorous State test, subject knowledge and teaching skills 
in reading, writing, mathematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienced teachers not "new to the profession") 
demonstrates competence in all the academic subjects in which the teacher teaches based 
on a high objective uniform State standard of evaluation. 
In addition, the petitioner submitted information from the U.S. Department of Labor's Occupational 
Outlook Handbook describing the minimum qualifications necessary to become an elementary 
school teacher: 
Kindergarten and elementary school teachers must have a bachelor's degree. In addition, 
public school teachers must have a state-issued certification or license. 
* * * 
Education 
All states require public kindergarten and elementary school teachers to have at least a 
bachelor's degree in elementary education. Some states also require kindergarten and 
elementary school teachers to major in a content area, such as math or science. 
* * * 
Some states require kindergarten and elementary school teachers to earn a master's degree 
after receiving their teaching certification. 
* * * 
Licenses 
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All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
Requirements for certification vary by state. However, all states require at least a bachelor's 
degree. They also require completing a teacher preparation program and supervised 
experience in teaching, typically gained through student teaching. Some states require a 
minimum grade point average. States often require candidates to pass a general teaching 
certification test, as well as a test that demonstrates their knowledge of the subject they will 
teach. Although kindergarten and elementary school teachers typically do not teach only a 
single subject, they may still be required to pass a content area test to earn their certification. 
Teachers are frequently required to complete annual professional development classes to 
keep their license. Most states require teachers to pass a background check. Some states 
require teachers to complete a master's degree after receiving their certification. 
All states offer an alternative route to certification for people who already have a bachelor's 
degree but lack the education courses required for certification. 
The petitioner has not established that the NCLBA's "Highly Qualified" standard involves 
requirements that are significantly more stringent than those outlined in the Occupational Outlook 
Handbook, or that a public school could not obtain a labor certification for a "Highly Qualified 
Teacher." Thus, the petitioner's specific qualifications and experience 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." Regardless, 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 he will 
serve the national interest to a substantially greater degree than do others in the same field. NYSDOT 
at 218, n.5. 
Counsel contends that a waiver would ultimately serve the interests of United States teachers, 
because if schools "fail to meet the high standard required under the No Child Left Behind [] Law," 
the result would be "not only ... closure of these schools but [also] loss of work for those working 
in those schools." Counsel, however, offers no specific examples of school closures and teacher 
layoffs attributable to not meeting NCLBA standards. Again, the unsupported assertions of counsel 
do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534, n.2; Matter of Laureano, 19 
I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. In addition, counsel asserts that 
by waiving the labor certification requirement for highly qualified special educators such as the 
petitioner, "more American teachers will have ... employment opportunities" because standards will 
be met and schools will not be abolished. As previously discussed, there are no blanket waivers for 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
highly qualified foreign teachers; USCIS grants national interest waivers on a case-by-case basis, 
rather than establishing blanket waivers for entire 
fields of specialization. NYSDOT at 217. 
A plain reading of the statute indicates 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 his 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. The petitioner need not demonstrate notoriety on the scale of national acclaim, but the 
national interest waiver contemplates that his 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 petitioner 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 at 128. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.