dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2016 
PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a high school math teacher, seeks classification as a member of the professions 
holding an advanced degree. See section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b)(2). In addition, the Petitioner seeks a national interest waiver of the job offer 
requirement that is normally attached to this classification. See section 203(b)(2)(B)(i) of the Act, 
8 U.S.C. §1153(b)(2)(B)(i). This discretionary waiver allows U.S. Citizenship and Immigration 
Services (USCIS) to provide an exemption from the requirement of a job offer, and thus a labor 
·certification, when it serves the national interest to do so. 
The Director, Texas Service Center, denied the petition, concluding that the Petitioner did not 
establish that her work will be national in scope or that she will benefit the national interest to a 
greater extent than an available U.S. worker with the same qualifications. 
The matter is now before us on appeal. On appeal, the Petitioner contends that her employment in 
"three (3) major jurisdictions" is "national in scope making it her past record of achievement that 
justifies projections of future benefits to the national interest." 
Upon de novo review, we will dismiss the appeal. 
.) 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification normally 
requires that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
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.-
Matter ofC-M-S-
(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 \}nited 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) National interest waiver .... 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.[1] • 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Matter of New York State Dep't of Transp., 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), 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. !d. at 217. Next, a petitioner must show that the proposed benefit will be 
national in scope. !d. 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. !d. at 21 7-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance that 
he or she will, in the future, serve the national interest cannot suffice to establish prospective national 
benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the national 
interest by establishing ahistory of achievement with some degree of influence on the field as a 
whole. !d. at 219, n. 6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
2 
(b)(6)
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Matter ofC-M-S-
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 re~ains, 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. 
At the time of filing the Form I-140, Immigrant Petition for Alien Worker, the Petitioner was 
employed as a math teacher for the Prior to that, she 
taught high school math in New York for 2 years and the Philippines for 28 years. In support ofthe 
petition, the Petitioner submitted various documents, including copies of her academic credentials, 
training certificates, and letters from colleagues. Upon review of the submitted information, the 
Director issued a request for evidence (RFE). While he acknowledged that the Petitioner "is a 
capable and skilled teacher," he found that the record did not establish that her "proposed activities 
will be national in scope" or that "the national interest would be adversely affected if a labor 
certification were required." 
In response, the Petitioner provided additional 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 satisfying the NYSDOT analytical framework and do not indicate that one 
teacher will have an impact at the national level. The Petitioner did not offer any direct support that 
the submitted materials reflect an intent to alter the adj\ldication of national interest waiver 
applications with regard to teachers.3 As U.S. Citizenship 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 framework set forth in NYSDOT. 
The Director denied the petition finding that the Petitioner had not overcome the deficiencies 
articulated in the RFE and concluding that she had not met the second and third prongs of the 
NYSDOT analytical framework. On appeal, the Petitioner argues that because she taught math in 
2 We note that while the Director indicated that it did "not form the basis for this denial," he found that the Petitioner had 
not established "at least five years of progressive post-baccalaureate experience" and therefore, had not met the 
regulatory requirements of1a member of the professions holding an advanced degree. Although the Petitioner did not 
address this subject on appeal, upon review of the record, we find that there is sufficient documentation to overcome the 
Director's finding on this issue. 
3 In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. I 06-95 (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 200 I 
(NCLBA), Pub. L. I 07-110, 115 Stat. I 425 (Jan. 8, 2002), contains a similar legislative change to the national interest 
waiver provision at section 203(b)(2)(8)(i) of the Act. 
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Matter ofC-M-S-
New York, Maryland, and the Philippines, her proposed employment is not only national in scope, 
but "global since she can serve any other country in the WOJld." The record does not, however, 
reveal that the Petitioner's work as an individual classroom teacher, regardless of where she teaches, 
significantly contributes to national educational goals, or 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. 
The Petitioner also states that her long career in two countries is "her past record of achievement 
which justifies projections of future benefit' to the national int{frest." Under the third prong of the 
NYSDOT framework, 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. 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." !d. at 219, n. 6. 
The Petitioner contends that the submitted "recommendation letters are living testaments to [her] 
accomplishment." While the letters indicate that she is "well-liked and a "conscientious and able 
teacher" with a lengthy career, they do not claim that she has had an impact on the field of teaching. 
The submitted materials do not set her apart from other competent and qualified teachers, nor do 
they establish that her work has resulted in significant benefits beyond her own classroom. Without 
evidence demonstrating that her work has affected the field as a whole, the length and location of the 
employment and employment in a beneficial occupation such as a teacher does not qualify the 
Petitioner for the national interest waiver. 
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 
to confirm that 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. 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. It is the Petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M-S-, ID# 18274 (AAO Sept. 20, 2016) 
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