dismissed EB-2 NIW Case: Education

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Admini strarive Appeal s 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OCT 2 1 2013 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 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.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;UOW~rJ.J.J 
(' 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 1-140, the petitioner seeks employment as an "Elementary Science Teacher" for 
The petitioner worked at 
Maryland from 2008- 2011. The petitioner asserts that an exemption from 
the requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The 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 define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). -
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest 
with the alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
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 the alien 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. Id. 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 subjective assurance that the alien 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 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 petitioner has established that her work as an elementary school teacher is in an area of 
substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of the 
petitioner's work will be national in scope and whether she will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver must rest with the alien's 
own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. NYSDOT at 220. Moreover, it cannot suffice to 
state that the alien possesses useful skills, or a "unique background." Special or unusual knowledge 
or training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department 
of Labor. /d. at 221. 
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The petitioner filed the Form I-140 petition on February 13, 2012. In a February 8, 2012 letter 
accompanying the petition, counsel stated that the petitioner's national interest waiver is "based on 
her Bachelor of Science degree in Elementary Education with Professional Education Courses 
Certificate from reputable universities in the Philippines including almost twenty (20) years of solid 
dedicated professional teaching experience which is equivalent to a Master's Degree from a 
regionally-accredited institution of higher education in the United States of America." Academic 
records and experience are elements that can contribute toward a finding of exceptional ability. See 
8 C.F.R. § 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, in tum, is not self-evident 
grounds for the waiver. See section 203(b )(2)(A) of the Act. The US CIS 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 her field of expertise. 
Counsel further stated: "But for the unfortunate incident that happened to 
[the petitioner] would naturally continue the joy and greater honor of teaching her 
students in Maryland." Counsel refers to the debarment provisions of section 212(n)(2)(C)(i) of the 
Act invoked by the U.S. Department of Labor against owing to certain immigration 
violations by that employer. As a result, between March 16, 2012 and March 15, 2014, USCIS 
cannot approve any employment-based immigrant or nonimmigrant petitions filed by 1 This 
debarment means that is, temporarily, unable to file its own petition on the alien's behalf for 
a classification other than the one for which she was already approved, and thus explains why labor 
certification is not an option in the short term. The inapplicability or unavailability of a labor 
certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still 
must demonstrate that she will serve the national interest to a substantially greater degree than do 
others in the same field. NYSDOT at 218, n.5. Any waiver must rest on the petitioner's individual 
qualifications, rather than on the circumstances that (temporarily) prevent from filing a 
petition on her behalf. 
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 her work would extend beyond her 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: 
1 The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.dol.gov/whd/immigration/HIBDebarment.htm, accessed on September 30, 2013, copy incorporated into the 
record of proceeding. 
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For instance, pro bono legal services as a whole serve the national interest, but the impact of 
an individual attorney working pro bono would be so attenuated at the national level as to be 
negligible. Similarly, while education is in the national interest, the impact of a single 
schoolteacher in one elementary school would not be in the national interest for purposes of 
waiving the job offer requirement of section 203(b)(2)(B) of the Act. As another example, 
while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not 
be considered sufficiently in the national interest for purposes of this provision of the Act. 
/d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as an 
elementary school teacher beyond the students at her school and, therefore, that her 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 she merits the special benefit of a 
national interest waiver, a benefit separate and distinct from the visa classification she seeks. A 
petitioner must demonstrate a past history of achievement with some degree of influence on the field 
as a whole. !d. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, teachers , and parents 
discussing her work as an educator. As some of the letters contain similar claims addressed in other 
letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate 
the nature of the references' claims. 
Gloria McCoy, Principal, Glenridge Elementary School, stated: 
I am writing on behalf of [the petitioner], a former fifth grade teacher at 
. -
of being [the petitioner's] principal for three years. 
diverse backgrounds and abilities. 
I had the pleasure 
She successfully taught students with 
[The petitioner] did an excellent job of preparing students for the challenges that they may 
face. She thoroughly planned her lessons and taught them in an imaginative manner. Her 
classroom was an inviting learning environment where she facilitated student growth. 
Throughout the years, her students exhibited gains in reading and in mathematics, scoring 
proficient and advanced on assessments. 
Through her quiet, but determined demeanor, [the petitioner] maintained excellent classroom 
management while still giving her students the opportunity to be creative. She was well­
respected by staff, students, and parents. 
Ms. comments on the petitioner's effectiveness as a teacher, but does not indicate that the 
petitioner's work has had, or will continue to have, an impact beyond the students under her tutelage 
and the local school system that employed her. 
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Mathematics Coordinator, stated: 
I have known [the petitioner] since October 2009. As the Mathematics Coordinator, I was 
able to work closely with her and grew to know her both personally and professionally. 
[The petitioner] joined ~ _ after the school year began. . . . [The 
petitioner] took over a class of students and taught Reading/Language Arts and Math. In 
addition she taught Science to the entire grade level of approximately ninety students. 
Although [the petitioner] was new to the staff, it was as if she had been a member of the staff 
for several years. She displayed a tremendous amount of professionalism, patience, 
enthusiasm, dedication, and focus. She was determined to make the students feel 
comfortable with their adjustment to a new teacher. 
[The petitioner] participated in our Reading Together Afterschool Program and also in the 
Extended Learning Opportunity Program in Reading and Math. . 
. . She worked hard to 
make sure her students were successful and committed to learning. She maintained high 
expectations for all of her students throughout the school year. 
[The petitioner] was very well liked by students, staff and families and always willing to 
provide assistance or volunteer. She was also interested in ways to further her professional 
development and stay abreast of new strategies, trends in education, and ideas. 
Ms. comments on the petitioner's personal qualities, professionalism, and activities as a 
teacher at but she does not indicate how the petitioner's impact or 
influence as an educator 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 parent whose child was taught by the petitioner at 
stated: 
I came to know [the petitioner] when my son was in 5th grade. She was his Math, Reading 
and Health teacher. His experience with her is remarkable and complete tum around in my 
son's academic performance. He was just proficient in Math and Reading in the Maryland 
Schools Assessment when he was in 3rct and 4th grade, but in 5
1
h grade test he became 
advance in the MSA test. This is not because my son did an extra effort to achieve that, but 
because his teacher wants to make a difference in her student's lives. Her dedication and 
passion to let the students learn and become successful in their learning is evident inside her 
classroom. With [the petitioner's] guidance, patience and dedication in teaching; it paved the 
way to my son's interest in studying and loved [sic] for school. 
Ms. speaks highly of the petitioner's teaching capabilities and asserts that the petitioner 
improved her son's academic performance. While Ms. J s comments indicate that the 
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petitioner works in an area of substantial intrinsic merit, her 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 references praise her teaching abilities and personal character , but they do not 
demonstrate that the petitioner's work has had an impact or influence outside of the schools where 
she has taught. They also do not address the NYSDOT guidelines which, as published precedent , are 
binding on all USCIS employees. See 8 C.P.R. § 103.3(c). That decision cited school teachers as an 
example of a profession in a field with overall national importance (education), but in which 
individual workers generally do not produce benefits that are national in scope. NYSDOT at 217, 
n.3. 
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 ofY-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 an alien'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 alien's 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 Maryland Educator Certificate; 
2. A "Certification of Good Standing" from the 
3. A Praxis Series test score report; 
4. Degrees and academic transcripts; 
5. Employment verifications; 
6. A "Certificate of Appreciation" from the 
Contributions of Leadership at the 
(November 19, 2010); 
thanking the petitioner "for Dedication and 
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7. A Certificate of Excellence from the -"for sharing her expertise in Rigor in the Classroom" 
(January 28, 2012); 
8. An "Outstanding Service" certificate from the "for his/her invaluable contribution 
in giving academic help to the students of __ 
in conjunction with its 
2011- 2012"; 
9. A Certificate of Membership for the and 
10. A Maryland State Education Association membership card. 
Again, academic records, occupational experience, professional certifications, membership in 
professional associations, and recognition for achievements are all elements that relate to a finding 
of exceptional ability, but exceptional ability is not sufficient to warrant the national interest waiver. 
The plain language of section 203(b )(2)(A) of the Act indicates that aliens of exceptional ability are 
subject to the job offer requirement (including alien employment certification). Particularly 
significant awards may serve as evidence of the petitioner's impact and influence on her field, but 
the petitioner has failed to demonstrate that the three awards she received (items 6 - 8) have more 
than local or institutional significance. There is no documentary evidence showing that items 1 - 10 
are indicative of the petitioner's influence on the field of education at the national level. 
The petitioner submitted copies of her "satisfactory" teacher evaluations from 
The petitioner, however, failed to demonstrate how the evaluations reflect that she has 
impacted the field to a substantially greater degree than other similary qualified special education 
teachers and how her specific work has had significant impact outside of the schools where she has 
taught. 
In addition, the petltwner submitted numerous certificates of participation and completion for 
training courses and seminars relating to her professional development. While taking courses and 
attending seminars are ways to increase one's professional knowledge and to improve as a teacher, 
there is nothing inherent in these activities to establish eligibility for the national interest waiver. 
The director issued a request for evidence (RFE) on July 31, 2012, instructing the petitioner to 
submit evidence to establish that the benefits of her proposed employment "will impart national­
level benefits" and that her "past record justifies projections of future benefit to the nation." 
In response, the petitioner submitted "Maryland's Plan for Meeting the Highly Qualified Teacher 
Goal"; President George H.W. Bush's "Remarks on Signing the Immigration Act of 1990"; a 2009 
article in the Wall Street Journal entitled "The Importance Math & Science in Education"; an article 
entitled "Importance of Science and Math Education"; the written testimony of Microsoft's Bill 
Gates before the Committee on Science and Technology of the United States House of 
Representatives (March 12, 2008); a statement by U.S. Secretary of Education Arne Duncan on the 
National Assessment of Educational Progress Reading and Math 2011 Results; information about 
STEM (science, technology, engineering and mathematics) fields printed from the online 
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encyclopedia Wikipedia; an article entitled "STEM Sell: Are Math and Science Really More 
Important Than Other Subjects?"; 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 alien benefits the national 
interest by virtue of engaging in the field. NYSDOT 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 a special educator has 
influenced the field as a whole. 
The director denied the petition on February 27, 2013. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director indicated that the petitioner had not shown that the benefits of her work as a 
public school teacher "will be national in scope." The director also determined that the petitioner had 
failed to demonstrate that she will serve the national interest to a greater extent than U.S. workers 
having the same minimum qualifications. 
On appeal , counsel asserts that "USCIS erred in g1vmg insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act 2001." Counsel notes 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 elementary 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. 
Because Congress not only can amend the Act to clarify the waiver provisions, but has in fact done 
so in direct response to NYSDOT, counsel has not shown that the NCLBA contains a similar 
legislative change . 
Counsel further states: 
With respect to the E21 visa classification, INA§ 203(b)(2)(A) provide s in relevant part that: 
"Visas shall be made available ... to qualified immigrants who are members of the professions 
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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 alien's "services ... are 
sought by an employer in the United States." By the plain language of the statute that counsel 
quotes on appeal, an alien professional holding an advanced degree is presumptively subject to the 
job offer requirement, even if that alien "will substantially benefit prospectively the national ... 
educational interests ... of the United States." Again, neither the Act nor the NCLBA create or 
imply any blanket waiver for highly qualified foreign teachers. As members of the professions , 
teachers are included in the statutory clause at section 203(b )(2)(A) that includes the job offer 
requirement. 
Counsel asserts that the director "erred in disregarding evidence demonstrating the national scope of 
the petitioner's proposed benefit through her effective role in serving the national educational 
interest of closing the achievement gap." The record, however, contains no evidence that the 
petitioner's efforts have significantly closed that gap 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 2012 MSA [Maryland School 
Assessment] Reading results show that out of the 24 Maryland school districts 
ranked near the bottom at the 'All Student' level for each MSA-covered grade level .. . . 
The petitioner worked for from 2008 - 2011, and thus had been there for a number of years 
before the administration of the 2012 MSA tests. Counsel fails to 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." 
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 her 
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students," he 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 
Counsel asserts that the "director erred in his appreciation of petitioner's past achievement," but 
counsel fails to point to evidence in the record showing that the petitioner's specific work has had a 
national impact or 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 users "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 her field. Instead, the 
director observed that the petitioner's evidence does not show that the petitioner's work has had an 
influence beyond the school system that employed her. 
Counsel asserts that the director's decision failed to adequately address the arguments pertaining to 
the petitioner's "eligibility for waiver of labor certification" that were submitted in response to the 
director's RFE . In his letter responding to the director's RFE, counsel emphasized "the critical 
timeline" and "time-sensitive obligation" for hiring "Highly Qualified STEM teachers,"' and 
claimed that the labor certification process cannot accommodate this need because "[t]he United 
States Department of Labor minimum education requirement . . . for Secondary Science teacher is 
just a bachelor's degree." Counsel further stated: "Doing a labor certification process for the Self­
Petitioner, faithful to the Foreign Labor Certification regulations, i.e., require only a bachelor's 
degree, would not meet the objective of the employer to hire highly qualified teachers pursuant to 
No Child Left Behind (NCLB) Law." 
Section 9101(23) of the NCLBA, 20 U.S.C. § 7801(23), defines the term "highly qualified" in 
reference to teachers. Sections 9101(23)(B) and (C) of the NCLBA require that a "highly qualified" 
teacher "holds at least a bachelor's degree." Section 9101(23)(B) of the NCLBA also refers to 
"highly qualified" teachers who are "new to the profession." Thus, the petitioner's "equivalent 
Master's degree" and almost "20 years of experience" are not required for "highly qualified" status 
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under the NCLBA. In addition, the petitioner has not established that the "highly qualified" standard 
involves requirements that are significantly more stringent than those for school teachers outlined in 
the U.S. Department of Labor's Occupational Outlook Handbook, or that a public school could not 
obtain a labor certification for a "Highly Qualified Teacher." Counsel, therefore, does not support 
his assertion that the labor certification process frustrates the NCLBA's mandate for schools to 
employ "highly qualified teachers." 
Counsel's response to the director's RFE further stated that "unquantifiable factors that zero in on 
'passion'" distinguish the petitioner from qualified United States workers and that labor certification 
cannot take these factors into account, but the record contains no evidence to support the claims. In 
addition, counsel contended that, under the NCLBA, schools that fail to meet specified standards will 
lose federal funding and be "abolished," thereby putting teachers out of work. 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 at 534 n.2; Matter of Laureano at 3 n.2; Matter of Ramirez-Sanchez at 506. 
Counsel further contended that by waiving the labor certification requirement for highly qualified 
teachers such as the petitioner, "more American teachers will have ... employment opportunities" 
because standards will be met and schools will not be abolished. However, there are no blanket 
waivers for highly qualified foreign teachers. Again, USCIS grants national interest waivers on a 
case-by-case basis, rather than establishing blanket waivers for entire fields of specialization. NYSDOT 
at 217. 
Counsel's response to the director's RFE also stated that another teacher received a national 
interest waiver, and asked that the present petition "be treated in the same light." Each petition filing 
is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination 
of statutory eligibility, users is limited to the information contained in the record of proceeding. 
See 8 C.F.R. § 103.2(b)(16)(ii). While AAO precedent decisions are binding on all users 
employees in the administration of the Act, unpublished service center decisions are not similarly 
binding. See 8 C.F.R. § 103.3(c). Furthermore, counsel provided no evidence to establish that the 
facts of the instant petition are similar to those in the unpublished decision. Without such evidence, 
the assertion that both cases merit the same outcome is unwarranted. The only stated similarity is 
that the beneficiary of the approved petition was "also a teacher in 
Counsel asserts in the appellate brief 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
efforts, after several years in the United States, have set her apart from other educators with regard to 
raising student achievement in or nationally. 
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 her past record of achievement is at a level that would justify 
a waiver of the job offer requirement which, by law, normally attaches to the visa classification 
sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. 
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."). 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.