dismissed EB-2 NIW Case: Education

(b)(6)
DATE: JAN 1 3 2014 OFFICE: TEXAS SERVICE CENTER 
JNRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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 :w t 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, 
~on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b )(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a middle school science/special education teacher in 
Since 2008, the petitioner taught at , part of 
the system. 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 
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). 
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Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT 
90), P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application oflhis 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 Dep 't qfTransportation, 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 the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 217-18. 
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. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here 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. Id. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on June 29, 2012. In an 
accompanying introductory statement, counsrl ~;tated that the petitioner's "petition for waiver of the 
labor certification is premised on her Master of Arts in Education (Major in Educational 
Management) and nearly thirty (30) years of inspired, innovative, and progressive teaching 
experience in both the United States and the Philippines." Academic degrees and experience can 
support a claim of exceptional ability in the sciences, the arts, or business, under the USCIS 
regulations at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, however, 
does not establish eligibility for the waiver, and therefore partial evidence of exceptional ability is 
not sufficient to show eligibility for the waiver. 
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Counsel stated: "During her time in the Philippines, [the petitioner's] ... instruction techniques had 
proven so effective that her classes were used as a model by the 
for their in-campus observation and practice teaching in Integrated Science 
and Biology." The petitioner taught at (which includes a high school) from 
1987 to 2008, and was a graduate student there during some of that time. The use of her work at that 
school, therefore, would not demonstrate wider influence. 
Furthermore, counsel's assertions are not evidence. See Matter ofObaigbena, 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). The record contains letters from officials of 
but these witnesses did not state that the petitioner's "classes were used as a model" as counsel asserted. 
Therefore, counsel's claim is unsupported. 
Counsel stated: 
Here in the United States ... [the petitioner's] influence in her profession continues 
to expand .... 
Through her hard work, [the petitioner] quickly rose to acclaim among her 
colleagues, earning Teacher of the Month for January 2011. Additionally, [the 
petitioner] serves as a leader in the _ _ This program is intended to 
help implement the Apple iPad in connection to the educational setting. At the 
moment, this program is in its pilot stages in only four selected middle schools in the 
nation, including [the petitioner's] school, in 
[The petitioner's] leadership includes choosing appropriate applications 
for students with special needs to be utilized by all students using iPads in the 
classroom. 
[The petitioner's] influence in the field of education, therefore, is not only local in 
scope among her students and her immediate educational community, but also 
extends throughout the country and within tangential sectors of the economy and 
technological fields. Her widespread, integrated influence in education and 
throughout her communities is critical to pursuit of the national interest. 
The petitioner submitted a copy of her "Teacher of the Month" certificate, but the record contains no 
further evidence or information about the program that counsel described in the quoted passage apart 
from a "Certificate of Completion" showing that the petitioner completed ~ 
Teacher Training" in January 2012. Going en record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). The reference to "four selected middle schools in the nation" implies that 
the program is national rather than regional or local, but the record does not identify the other three 
participating schools or state their location. Also, the petitioner's participation in a pilot program 
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does not mean that she is responsible for creating the program or implementing it more widely, or 
that the petitioner had anything to do with selection as one of the pilot schools. Rather, her 
completion of " Teacher Training" indicates that the program was developed 
first, and then the petitioner (and other participants) received training in its implementation. 
Apart from the "Teacher of the Month" certificate, other certificates in the record that counsel called 
"Awards/Recognitions" consist primarily of "Certificates of Appreciation" and "Teacher 
Recognition Certificates" from A "Certificate of Recognition" from 
acknowledged the petitioner's "Perfect Attendance in the training course on basic office productivity 
tools," and the _ _ 
L gave the petitioner a "Certificate of Commendation ... for training the participants of 
in the SciQuiz 2006." 
Counsel claimed a statutory basis for the waiver claim, asserting: 
As the U.S. Congress has identified in the No Child Left Behind 
Act of 2002 
(NCLB), elementary education, particularly in the fields of science, technology, 
engineering, and mathematics (STEM) is critical to the future of the United States and 
its position as a global leader in an increasingly competitive global market. Similarly, 
the Individuals with Disabilities Education Act (IDEA) stresses the need to offer the 
same support and guidance to the education of all America's children, especially 
those more in need of individualized education plans. 
Through these acts, the federal government has provided guidelines to see the 
evolution of the U.S. Educational System; similarly, it has earmarked funds to 
support the system's growth and to see that highly qualified educators like [the 
petitioner] can have the resources to provide their skills to the best of their ability. 
Counsel cited no passage from the NCLB Act or from the IDEA relating specifically to the national 
interest waiver or, more generally, to immigration provisions for teachers. General emphasis on the 
importance of education does not create specific immigration benefits for foreign teachers. 
The petitioner submitted several letters frm;: \'litnesses at 
attesting to the petitioner's talent and dedication as a teacher. Many of these submissions are letters 
of recommendation intended for employers. For example, _ _ 
stated: "I strongly recommend [the petitioner] without reservation for a teaching position in your 
school." These 
letters focus on information that would be of interest to potential employers (such as 
her classroom management style) rather than the petitioner's impact or influence on her field as a 
whole. Other letters, written more recently specifically to support the petition, are complimentary 
toward the petitioner but, like the letters intended for employers, emphasize the local impact of the 
petitioner's work. 
The petitioner submitted copies of cards and letters from some of her former students at and 
their parents. These informal messages conveyed thanks and appreciation directly to the petitioner, 
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but do not address the petitioner's impact outside the classroom. The statements from 
administrators, teachers, students, and students' parents establish that the petitioner has earned the 
respect of the ~ommunity, but being a competent and respected teacher is not sufficient to 
meet the NYSDOTthreshold for the national interest waiver. 
The petitioner submitted a copy of a letter from , superintendent of schools for 
, informing the petitioner: "At this time, is debarred by the Department of Labor from 
sponsoring visa extensions for its foreign national employees," and therefore "will be unable to 
extend your employment beyond" "the expiration date of your H1-B visa." The threshold for waiving 
the job offer requirement is the national interest, rather than the inability of a particular employer to 
petition for an intended employee. 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 
self-employed alien will serve the national interest to a substantially greater degree than do others in the 
same field. NYSDOT at 218 n.5. 
Furthermore, the debarment affects only ; other schools and districts remain able to petition on 
the petitioner's behalf. The record contains a copy of a "Professional Teacher" license for "Science 
Education (7-12)" and "Special Education Generalist (5-21)," issued by the State of Colorado on March 
12, 2012, less than four months before the petition's filing date. This new license implies that the 
petitioner is open to employment outside of 
The petitioner submitted copied pages from 
. _ identifying her as a consultant to the publication. The petitioner submitted no 
evidence of circulation outside the school. The record does not show that her consulting role on a 
student publication has influenced education on a 
national scale. 
The director issued a request for evidence on September 29, 2012, stating: "The petitioner must 
establish that the beneficiary has a past record of specific prior achievement with some degree of 
influence on the field as a whole. The beneficiary's previous influence on the field as a whole must 
justify projections of future benefit to the national interest." 
In response, counsel quoted section 203(b)(2)(A) of the Act: "Visas shall be made available ... to 
qualified immigrants who ... will substantially benefit prospectively the national ... educational 
interests ... of the United States." Counsel also quoted then-President George H.W. Bush who, 
upon signing IMMACT 90 into law, stated that the law "provides for vital increases for entry on the 
basis of skills, infusing the ranks of our sci-.:ntists and engineers and educators with new blood and 
new ideas." Counsel concluded that "education is one of the sectors that the E21 preference 
classification seeks to address." That immigrant classification does include educators, but it also 
incorporates a requirement that the immigrants' "services . 
. . are sought by an employer in the 
United States." The legislation does not show that teachers automatically qualify for the waiver; it 
proves the opposite. 
Counsel stated: 
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NON-PRECEDENT DECISION 
the contours of the national interest wmver under INA § 203(b )(2)(B)(i) were 
amorphous at best. ... 
[T]he United States Congress has spelled out the national interest with respect to 
public elementary and secondary school education through the No Child Left Behind 
Act of2001 ("NCLB Act"), 20 U.S.C. § 6301 etseq .... 
[T]he NCLB Act and the Obama Education Programs, taken collectively, provide the 
underlying context for the adjudication of a national interest waiver application made 
in connection with an E21 visa petition for employment as a Highly Qualified 
Teacher in the public middle school education sector. 
The obscurity in the law that NYSDOT sought to address has been clarified, at least 
with respect to questions about the national educational interest. Thus, an automatic 
application of NYSDOT's exacting standards in a national interest waiver connected 
with a job in a public school district, without considering the wide-ranging impact of 
the NCLB Act, would be inapposite given the factual circumstances availing in 
NYSDOT and the post-NYSDOT enactment of the NCLB Act. More importantly, a 
straight-jacket [sic] application of NYSDOT constricts, instead of promoting, the 
national educational interests. In effect, therefore, the United States Congress, with 
the enactment of the NCLB Act, has preempted the USCIS with respect to the 
parameters that should guide its determination whether a job offer requirement based 
on the national educational interests is warranted. Otherwise stated, the requirement 
of a job offer or labor certificate for the occupation of Highly Qualified Middle 
School Special Education Teacher in a public school district should be waived if it is 
established that the alien will substantially benefit prospectively the national 
educational interests of the United S tat~s, as these interests are enunciated in the 
NCLB Act and the Obama Education Programs. 
The NCLB Act, however, did not amend the Immigration and Nationality Act or mention the 
national interest waiver. The statute contains several references to "immigrant children and youth" 
(e.g. , section 301 of the NCLB Act bears the title "Language Instruction for Limited English Proficient 
Children and Immigrant Children and Youth"), but no references to immigrant teachers. The NCLB 
Act does not refer to section 203(b )(2) of the Act, and the phrase "national interest" does not appear 
in its text. 
In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 
113 Stat. 1312 (1999), specifically amended th.e Immigration and Nationality Act by adding section 
203(b)(2)(B)(ii) to that Act, to create special waiver provisions for certain physicians. Thus, 
Congress not only can amend the Act to clarify the waiver provisions, but has in fact done so in 
direct response to NYSDOT. Absent a comparable provision in the NCLB Act or other education­
related legislation, the petitioner has not established that the legislation indirectly implied a blanket 
waiver for teachers. This legislation also shows that the creation of a blanket waiver is a prerogative 
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belonging to Congress rather than to USCIS. USCIS will not designate blanket waivers for entire 
fields or specialties. See NYSDOT at 217. 
Regarding the claimed ambiguity of NYSDOT with respect to teachers, that decision pointed to 
school teachers as an example of an occupation that is nationally important at a collective level, but 
lacks national scope at an individual level. Id. at 217 n.3. 
Counsel claimed that the NCLB Act gives the petitioner's work national scope because the 
legislation aimed to effect national-level changes in the quality of public education. This assertion 
concerns the national scope of public education as a whole, and of the NCLB Act as a statute, but it 
does not follow that every worker affected by the statute produces national-level benefits at an 
individual (rather than cumulative) level. Overall benefits produced by a generally applicable 
statute, such as the NCLB Act, do not entitle every foreign worker covered by that law to special 
immigration benefits such as the national interest waiver. 
In the passage quoted above, counsel contended that a waiver is in order "if it is established that the 
alien will substantially benefit prospectively the national educational interests of the United States." 
The plain text of section 203(b)(2)(A) of the Act, however, states: "Visas shall be made available ... 
to qualified immigrants who ... will substantially benefit prospectively the national ... educational 
interests, or welfare of the United States, and whose services ... are sought by an employer in the 
United States." In this way, Congress specified that substantial prospective benefit to the interests of 
the United States is not sufficient for the waiver; an intending immigrant who offers such benefit 
must still be "sought by an employer in the United States." The NCLB Act did not establish a lower 
standard for teachers. 
Citing background materials regarding the performance of U.S. students compared to students in 
other nations, counsel stated: "Given the mediocre performance by American students in Math and 
Science globally, [the petitioner's] success in the state of Maryland would certainly bear national 
impact." Counsel also cited the "achievement gap" between underprivileged students and those 
from more affluent backgrounds, and stated that the Teach for America program, which places 
minimally trained recent college graduates into classrooms, has produced disappointing results 
compared to the petitioner's "proven success." Counsel, however, also quoted statistics showing 
that students continue to perform poorly in comparison to other Maryland students. The 
record does not show that the petitioner, in her several years at has perceptibly closed the 
achievement gap. The claim that she will do so in the future is unsupported speculation. 
Counsel asserted that the "Teach for America Program ... is reported to have rare positive impact," 
and emphasized that Congress enacted the NCLB Act in order to reform and improve public 
education, but counsel cited no statistics indicating that the NCLB Act has improved education more 
than Teach for America has done. Counsel focused on the claimed intention behind the NCLB Act, 
rather than on its results in the decade since its enactment. 
Counsel cited studies indicating that special education teachers "with more training were more likely 
to indicate they intended to leave." Counsel claimed that, "given [the petitioner's] highly achieved 
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qualifications, she is not one of those with more training more likely to indicate they intended to 
leave," but offered no support for the claim that "highly achieved qualifications" counteract this 
trend among special education teachers "with more training." The studies that counsel cited 
indicated that the correlation existed only with regard to "intent to leave"; they showed no such 
correlation with "leaving, moving or exiting." Therefore, the study, as described by counsel, does 
not appear to show that more highly trained teachers actually act upon their "intent to leave" in 
greater numbers than other special education teachers. Also, the departure or reassignment of a 
single special education teacher is a local staffing issue rather than a matter of national significance. 
Counsel claimed that the labor certification process would pose a "dilemma" because the petitioner's 
qualifications exceed the minimum requirements for the position, and "the employer is required by No 
Child Left Behind (NCLB) Law ... to employ highly qualified teachers." Counsel did not show that 
these two considerations are incompatible. Section 9101(23) of the NCLB Act defines the term 
"highly qualified teacher." By the statutory definition, a "highly qualified" 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 
• demonstrates competence in the academic subjects he or she teaches. 
Counsel did not explain how the above requirements are incompatible with the ex1stmg labor 
certification process, and the petitioner submitted no evidence that the labor certification requirement 
has resulted in the widespread employment of teachers who are less than "highly qualified." The 
minimum degree requirement is the same for labor certification as it is for a highly qualified teacher 
(i.e., a bachelor's degree). 
Counsel requested "equitable consideration" of the debarment order which temporarily prevents 
from petitioning for foreign workers. The waiver, however, is neither a humanitarian 
provision nor a loophole for debarred employers and their workers. The statutory standard for the 
waiver is the national interest, benefiting the United States to an extent greater than the prospective 
national benefit 
that would arise from exceptional ability in one's field. 
The petitioner submitted copies of new certi.Bce,tes that she received after the petition's filing date. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the benefit request. 8 C.F.R. § 103.2(b)(1). Certificates issued after the filing date cannot 
retroactively establish eligibility. users cannot properly approve the petition at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45,49 (Reg'l Cornrn'r 1971). 
Also, the certificates themselves would not establish eligibility even if they had predated the filing 
date. Most of the certificates are from either "Certificates of Appreciation" acknowledging 
the petitioner's participation in school events or "Certificates of Completion" documenting the 
petitioner's ongoing training. These materials do not show that the petitioner has had or will have a 
significant impact beyond The only certificate not from : is from .. her church, "in 
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recognition of Teacher Appreciation Day." The petitioner appears to have received this certificate 
because she is a teacher affiliated with the congregation; she did not show that it has any other 
significance. 
Electronic mail messages, both dated December 1, 2012, welcomed the petitioner "to the Learning 
Disabilities Association of America" and "as a new member ofNASET ," the National Association of 
Special Education Teachers. Membership in professional associations is a criterion of exceptional 
ability under 8 C.P.R. § 204.5(k)(3)(ii)(E), but exceptional ability does not demonstrate eligibility for 
the waiver and the petitioner did not show that membership in the named associations requires a level 
of impact or achievement consistent with the national interest waiver. Also, as with the new 
certificates from PGCPS, the membership evidence dates from several months after the petition's 
filing date. 
The petitioner submitted new reference letters as well as copies of some letters submitted previously. 
Some of the letters deal with her performance as a teacher, others with her volunteer work in the 
community. These letters are not significantly different from the letters initially submitted with the 
petition. They contain praise for the petitioner's local work and her personal character, but do not 
indicate that the petitioner has had any wider effect on public education in the United States. 
The director denied the petition on March 29, 2013. The director acknowledged that the "petitioner 
submitted more than twenty recommendation letters and copies of certificates," and discussed the 
petitioner's response to the request for evidence. The director stated: "The petitioner's evidence ... 
praises her abilities and the critical nature of her position, but fails to explain how the benefits of her 
employment will be national in scope." The director also stated that, whatever the overall 
importance of education, "[t]he issue in this case is not whether education is in the national interest, 
but whether the beneficiary, to a greater extent than U.S. workers having the same qualifications, 
plays a significant role in that field." 
Several additional passages in counsel's appellate brief are repeated verbatim from the earlier 
response to the request for evidence. One of the repeated passages concerns the claim that, by 
enacting the NCLB Act, Congress clarified the "national educational interest." In new language, 
counsel asserts that the director "gave insufficient weight to the NCLB Act" and "the Obama 
administration 's current initiatives aimed at enhancing that law." Counsel has not established that 
the NCLB Act contains immigration provisions that amended the Immigration and Nationality Act. 
Counsel states: 
The Matter of New York State Dept. of Transportation obviously is good in so far as 
NIW cases filed by Engineers are concerned but does not give justice to other 
professionals especially since the facts are definitely distinct from each other, not to 
mention subsequent legislations intended to provide guiding principles to implement 
Immigration Act of 1990. 
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With respect to "subsequent legislations intended to provide guiding principles to implement [the] 
Immigration Act of 1990," the Miscellaneous and Technical Immigration and Naturalization 
Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991) made the national interest 
waiver available to members of the professions holding advanced degrees, where previously it was 
available only to aliens of exceptional ability. Following the 1998 publication of NYSDOT, section 5 
of the Nursing Relief for Disadvantaged Areas Act of 1999 amended the Immigration and 
Nationality Act by adding section 203(b )(2)(B)(ii) to that Act, to create special waiver provisions for 
certain physicians. These statutes "provide guiding principles" with respect to the national interest 
waiver. Counsel has identified no legislation that contains a comparable provision for teachers. 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport, 495 U.S. 552 (1990). Where the language of a statute is clear on its 
face, there is no need to inquire into Congressional intent. INS v. Phinpathya, 464 U.S. 183 (1984). 
The statutory language of section 203(b )(2)(A) of the Act subjects professionals, including teachers, 
to the job offer requirement. 
Counsel claims that NYSDOT "requires overly burdensome evidence on the qualification [sic] of the 
self-petitioner, identical to EB-1 extraordinary requirements." The evidentiary requirements to 
establish extraordinary ability appear at 8 C.P.R. § 204.5(h)(3). Those requirements are not 
"identical" to the guidelines in NYSDOT, and the director did not deny the petition due to the 
petitioner's failure to establish extraordinary ability. Concerning counsel's assertion that the waiver 
is "available to those either 'with 
an advanced degree' or 'exceptional ability,"' those qualifications 
make one eligible to apply for the waiver, but do not guarantee the approval ofthat application. 
Counsel states: "The standard in other words is not national geography but national intellection 
directed to recapture the nation's economic dominance. This is what is called 'Bridging the Gap.' 
Syllogistically, hiring 'Highly Qualified Teachers' would produce more graduates than dropouts." 
The existence of federal education policy does not give national impact to the efforts of one 
schoolteacher, and the petitioner has not submitted evidence to establish that the hiring of one 
"Highly Qualified Teacher" increases graduation rates. See Matter ofSoffici at 165; see also Matter 
of Obaigbena at 534 n.2, (citing Matter of Ramirez-Sanchez at 506). 
Counsel cites various Department of Education publications concerning the goals of the NCLB Act 
and other federal programs, and repeats previously submitted assertions regarding the petitioner's 
"proven success" in closing the achievement gap. Counsel, however, cites no evidence documenting 
the results of those programs a decade after NCLB Act's enactment. Instead, counsel cites recent 
statistics regarding poor student performance by students in 
several years after the passage of the NCLB Act and several years after the petitioner began working 
for Eligibility for the waiver rests on the merits of the individual seeking the waiver, and 
the record does not show that the petitioner has had or will have a nationally significant impact on 
graduation rates. Being a "Highly Qualified Teacher" under the NCLB Act does not establish or 
imply eligibility for the national interest waiver. 
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Counsel states: 
USCIS-Texas Service Center has not specified what it meant by 'any contributions of 
unusual significance that would warrant a national interest waiver.' There is no 
clarity on this particular requirement and yet, the Director has easily dismissed the 
incomparable accomplishments of [the petitioner] as submitted in her [sic] Case File. 
By requiring the petitioner to subrnit evidence of ambiguous nature is 'unduly 
burdensome' and in effect tantamount to requiring 'impossible evidence' for being 
extremely subjective. 
The lack of clear standard on this particular requirement leaves the finding of 
insufficiency by USCIS-Texas Service Center highly speculative, without factual 
basis and rather drawn in thin air. 
The mandate for 'flexibility in the adjudication ofNIW cases' ... must be construed 
liberally rather than strictly compared to the New York State Department of 
Transportation case. USCIS is now required by United States Congress through the 
No Child Left Behind Act of 2001 ... to make it "flexible["] and thus possible rather 
than impossible in favor of the 'Best Interest of the School Children,' by granting 
waivers to 'Highly Qualified Teachers' who have already been serving the cause 
instead of requiring labor certification which may only reveal uncommitted U.S. 
workers with minimum education qualification. 
The petitioner has not submitted evidence to establish that her accomplishments are "incomparable" 
as counsel claims. After suggesting that the director's decision is "drawn in thin air," counsel asserts 
that the NCLB Act did not merely imply that USCIS should grant the waiver to "highly qualified 
teachers," it "required" USCIS to do so. Counsel cites no specific section of the NCLB Act 
containing this claimed requirement. 
The NYSDOT decision acknowledges the need for "flexibility" because different cases will hinge on 
different types of evidence, depending on the occupation involved. Flexibility does not mean that 
workers in different occupations are entitled to different standards of proof, or can claim blanket 
waivers without legislative or regulatory support. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers, and asserts: "the USCIS-Texas 
Service Center should have presented its own comparable worker, if there be any at all," as a basis 
for comparison against the petitioner. The NYSDOT guidelines are not an item-by-item comparison 
of an alien's credentials with those of qualified United States workers. That decision indicated that 
the petitioner must establish a record of influence on the field as a whole. !d. at 219, n.6. To do so 
does not require an invasive review or comparison of other teachers' credentials. 
Counsel asserts that the petitioner "has submitted overwhelming evidence" of eligibility, and that 
"the Director is requiring more from the beneficiary's credentials tantamount to having exceptional 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
ability," even though one need not qualify as an alien ofexceptional ability in order to receive the 
waiver. It is evident from the statute that the threshold for exceptional ability is below, not above, 
the threshold for the national interest waiver; it is possible to establish exceptional ability but still not 
qualify for the waiver. Also, the director did not require the petitioner to establish exceptional 
ability in her field. Instead, the director found that the petitioner's evidence failed to establish that 
her work has had an influence beyond the school districts where she has worked. 
Congress has established no blanket waiver for teachers based on the overall importance of education; 
eligibility for the waiver rests on the merits of the individual alien. The petitioner has not established a 
past record of achievement at a level that 'v\{:>~1)d justify a waiver of the job offer requirement. The 
petitioner need not demonstrate notoriety on the scale of national acclaim, but the national interest 
waiver contemplates that her influence must be national in scope. NYSDOT 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 alien must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole."). 
A plain reading of the statute shows that not every person qualified to engage in a profession in the 
United States should be exempt from the requirement of a job offer based on national interest. 
Likewise, it does not appear to have been the intent of Congress to grant national interest waivers on 
the basis of the overall importance of a given profession, such as teaching, rather than on the merits of 
the individual alien. 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. 
The AAO 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.