dismissed EB-2 NIW Case: Education

(b)(6)
DATE: 
APR 1 8 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Services 
Admini strative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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:ijwww.uscis.gov/fonns 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, 
)) De.£{ tin clu 
: ;~ 
r Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (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 
etitioner seeks employment as an elementary school teacher for 
in Maryland , where she has worked since 2007. 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 interestof 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 immigrant~ 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 rep011 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 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 Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comrn'r 1998) 
(NYSDOI) , 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. !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 te1m "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. !d. 
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 26, 2012. In an 
accompanying statement, counsel stated that the petitioner seeks the national interest waiver, but 
counsel did not address the guidelines set forth in NYSDOT. Instead, counsel listed the evidence 
submitted, and cited the petitioner's "Master 's Degree in Education [and] thirteen (13) years of post­
baccalaureate progressive work experience as an educator both in the Philippines and in the United 
States of America." Counsel also listed "Recognitions and Merits" such as a "Science Fair Certificate" 
and a "Certificate of Perfect Attendance ... for the month 6f April2007." 
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Degrees, experienc e, and recognitio,n for achievements and contributions are all elements of a claim of 
exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and (F), respectively. The plain wording 
of section 203(b )(2)(A) of the Act indicates that aliens of exceptional ability are, by default, subject to 
the job offer requirement (including labor certification). Therefore, evidence of exceptional ability is 
not sufficient to warrant the national interest waiver. Furthermore, the petitioner did show that her 
various certificates reflect impact or influence on the field of education as a whole, rather than on a 
particular school or district. 
Counsel stated: 
Her accomplished dedication ... has not only theoretically helped improve the 
education in the country but most importantly has in the process completely and 
realistically re-created the young lives of students worth living as evidenced by the 
testimonials from her students. And as we know, these heartfelt testimonials are as 
powerful as any award or citation from recognizing bodies. 
In addition, the merit of [the petitioner's] request for National Interest Waiver is based 
on the improvement to the United States Education more particularly in the field of 
Elementary Education , which she has actually already been fulfilling as in the State of 
Maryland since 2007. Notwithstanding this, [the petitioner] is determined to continue 
her selfless service to the nation of improving the Elementary Education in the United 
States of America by challenging other public schools in the country to equal at least or 
better yet surpass the progress obtained by her students in Maryland. 
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). The record contains no documentary evidence 
to show that the petitioner's students have made unusual progress, or that teachers in schools across the 
nation consciously and actively emulate the petitioner's methods in order to achieve similar results. 
Letters from school administrators, teachers, students, and parents of students showed appreciation for 
the petitioner's diligent efforts on behalf of her students, but do not show the broader impact and 
influence, both in the past and prospectively, that the NYSDOT guidelines enumerate. Other materials 
submitted with the petition show that the petitioner has been an active and successful teacher with her 
students, but do not demonstrate impact beyond the local level. 
The director issued a request for evidence on November 15, 2012. The director instructed the 
petitioner to "submit evidence that [her] contributions will impart national-level benefits" and that her 
"past record justifies projections of future benefit to the nation." In response, counsel stated that the 
director "has discretion to enforce" NYSDOT, but that "legal and factual premises [exist] upon which 
... the Service can issue affirmative decisions without deviating from said precedent case." The 
director's adherence to NYSDOT is not a matter of "discretion." As a published precedent, NYSDOT is 
binding on all USCIS employees in the administration of the Act. 8 C.F.R. § 103.3(c). 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
Counsel quoted remarks made by then-President George H.W. Bush when he signed IMMACT 90: 
"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 interpreted this passage to mean 
that Congress created the national interest waiver for educators, but the job offer requirement for which 
the petitioner seeks a waiver was, itself, an integral provision of IMMACT 90. President Bush's 
quoted remarks did not specifically mention the national interest waiver, and there is no evidence that 
the remarks referred particularly to the waiver, rather than to IMMACT 90 as a whole. The national 
importance of "education" as a concept, or "educators" as a class, does not lend national scope to the 
work of a single schoolteacher. 
Counsel asserted that section 203(b )(2)(B)(i) of the Act does not contain clear guidance on eligibility 
for the waiver, and claimed that Congress subsequently filled that gap with the passage of the No Child 
Left Behind Act of2001 (NCLBA), Pub.L. 107-110, 115 Stat. 1425 (Jan. 8, 2002): 
Congress has in effect remarkably engraved the missing definition upon the concept of 
'in the national interest,' centered on the 'Best Interest of American School Children.' 
More importantly, U.S. Congress also provided the means to achieve this now defined 
'in the national interest,' i.e., 'Hiring and Retaining Highly Qualified Teachers.' 
Interestingly, "NCLB Act" also specified the 'Standard of a Highly Qualified Teacher.' 
Indeed, the "NCLB Act" has elucidated the previously dark avenue for educator­
national interest waivers. 
With this, the Service now has a definite working took in defining what is 'in the 
national interest' including the clear standard on what qualifications must be required 
from NIW [national interest waiver] teacher self-petitioners, as mandated by No Child 
Left Behind Act of 2001. There is no longer vagueness or obscurity like what 
happened in the New York State Department of Transportation case, which left the 
Immigration Service with over-reaching discretion in imposing even the impossible 
from NIW teacher self-petitioners. 
Counsel acknowledged that the NCLBA "is not an immigration law per se," but asserted that the "law 
applies to 'Highly Qualified International Educators."' It applies to such teachers in the general sense 
that the NCLBA makes no distinction between U.S. teachers and immigrant teachers, but the NCLBA 
does not contain any specific references to foreign teachers. 
Most of counsel ' s statement consists of variations on the claim that the NCLBA amounts to a 
legislative mandate for a blanket waiver for highly qualified teachers. The NCLBA contains no 
mention of the national interest waiver or any immigration benefits for foreign teachers, and it did not 
amend section 203(b )(2)(B) of the Act (which created the waiver). 
Here, the petitioner has not established that Congress intended to exempt teachers from the job offer 
requirement, either through section 203(b )(2) of the Act, the NCLBA, or any other federal legislation. 
The phrase "national interest" does not appear in the text ofthe NCLBA. The term "best interest," 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
with respect to children, appears only in provisions relating to homeless students. Therefore, there is 
no support for counsel's claim that the NCLBA "defined [the phrase] 'in the national interest'" with 
respect to education. 
The NCLBA did not amend section 203(b )(2) of the Act or otherwise mention the national interest 
waiver. In contrast, the Miscellaneous and Technical Immigration and Naturalization Amendments of 
1991 (MTINA) , 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 publication of NYSDOT, section 5 of the Nursing 
Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 Stat. 1312 (Nov. 12, 1999), 
specifically amended the Act by adding section 203(b)(2)(B)(ii) 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 on two occasions, first to correct an omission of language, and later in direct 
response to NYSDOT. Counsel identified no other legislation that directly addresses the national 
interest waiver in this way. In the absence of a comparable provision in the NCLBA or any other 
education-related legislation, there is no basis to conclude that the legislation indirect! y implied a 
blanket waiver for teachers. Without clearly expressed Congressional authority, USCIS will not 
designate blanket waivers on the basis of occupation. See NYSDOT at 217. 
The NCLBA and other federal initiatives establish that the federal government places a priority on 
improving the quality of education, but counsel did not establish that any of these programs had the 
express or implied result of changing immigration policy toward teachers. Section 203(b )(2)(A) of the 
Act remains in effect, and therefore teachers , "highly qualified" or otherwise, remain subject to the job 
offer requirement. 
In an effort to establish that the benefit from the petitioner's work will be national in scope, counsel 
discussed national educational initiatives intended to "clos[ e] the achievement gap" and improve 
student performance. Counsel did not explain how the efforts of one teacher at one elementary school 
would produce nationally significant results toward these goals. As explained in NYSDOT, 
specifically using elementary school teachers as an example, the national scope of an overall problem 
or goal does not lend national scope to the efforts of every affected worker operating at the local level: 
"[W]hile 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." !d. at 217 n.3. The collective importance of all teachers does not 
qualify individual teachers for the waiver. 
Turning to the petitioner individually, counsel stated: "the impact of [the petitioner's] proven success 
in raising proficiency of her students transcends the classroom and imparts national-level benefits." 
Counsel identified no evidence in the record to establish that the petitioner has improved student 
proficiency. The unsupported assertions of counsel do not constitute evidence. See Matter of 
Obaigbena, 19 I&N Dec. 534 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. 506. Furthermore, 
counsel did not explain 
how the local impact of the petitioner's classroom work "imparts national-level 
benefits." 
(b)(6)
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Counsel listed the five previously submitted certificates as "evidences of [the petitioner 's] 
achievements," but did not explain how these documents establish the petitioner's impact and 
influence on the field of elementary education as a whole. 
Noting that the petitioner has "over 12 years of dedicated service in [her] profession," counsel stated 
that it is "economically wholesome" to take advantage of the petitioner's experience "instead of 
waiting for over 12 years until U.S. workers become as highly qualified as she is." This assertion 
presumes that there are no experienced elementary school teachers in the United States, and therefore 
it will take 12 years before any U.S. teacher reaches the level of experience that the petitioner has 
already attained. Counsel provided no evidence to support this assertion. See Matter of Obaigbena, 
19 I&N Dec. 534 n.2; Matter of Ramire z-Sanchez , 17 I&N Dec. 506. Also, length of experience, by 
itself, does not convey influence on the field or benefit that is national in scope. 
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 NCLBA 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 process 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). 
As an "equitable consideration," counsel stated that the petitioner 
is firmly commited to continue teaching at However, is currently 
barred for a two-year period (i.e. from March 16, 2012 to March 15, 2014) from filing 
any employment-based immigrant and/or nonimmigrant petition ... arising from 
willful violations of the H-1B regulations at 20 C.F.R. Part 655, subparts H 
and I. ... Thus, through no fault of her own, [the petitioner] would not be able to 
continue teaching in unless her E21 visa petition is approved, not to mention 
the fact that she has already firmly established a life here in the United States. 
The standard for the waiver of the job offer requirement is not the petitioner's desire to remain in the 
United States or her prospective employer's temporary inability to petition on her behalf. The 
temporary debarment order is not grounds for granting a permanent immigration benefit. 
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The petitioner submitted documentation relating to federal education policy, but no evidence to show 
that she, individually, stands out from her peers to an extent that would warrant an exemption from the 
job offer requirement that, by law, ordinarily applies to teachers. 
The director denied the petition on July 2, 2013, stating that the petitioner had met only the first prong 
of the NYSDOT national interest test, pertaining to the substantial intrinsic merit of her occupation. 
The director discussed the petitioner's evidence and determined that it does not show that the 
petitioner's work has had a significant impact beyond the districts where she has worked, and "[t]here 
is little evidence to suggest that the petitioner's contributions will impm1 national-level benefits." 
On appeal, counsel repeats the assertion that federal education policy, including the NCLBA, implies 
an unstated blanket waiver for teachers who meet the NCLBA's definition of "highly qualified." 
Counsel states that the director erred by giving NYSDOT, "which involved an engineer," more weight 
than "the national educational interests enunciated in the No Child Left Behind Act of2001." 
Counsel asserts that NYSDOT offers little specific guidance as to what, exactly, serves the national 
interest. Counsel contends that "[t]he obscurity in the law that NYSDOT sought to address has been 
clarified": 
[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 of 
_2001 ... which came into effect upon its enactment in 2001 - that is, more than a 
decade after IMMACT 90 and MTINA were enacted and three years after NYSDOT 
was designated as a precedent decision .... 
Accordingly, the NCLBA 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 education sector. ... 
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 waiver of the job offer requirement based on national 
educational interests is warranted .... 
[I]n the instant case, USCIS gave insufficient weight to the NCLB Act because it 
confined its consideration of that law to the first NYSDOT factors. 
The NCLBA, however, did not amend the Act or mention the national interest waiver. Counsel 
identifies no statute, regulation, or case law that would give the NCLBA force as an immigration 
statute or otherwise create a blanket waiver for teachers. 
After quoting from the Act and other statutes, counsel states: "Based on these statutory provisions, the 
requirement of a job offer or labor certificate for the occupation of Highly Qualified Mathematics [sic] 
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Teacher that [the petitioner] is seeking may be waived if it is established that she will substantially 
benefit prospectively the national educational interests of the United States." The statute, however, 
states that an alien who "will substantially benefit prospectively the national ... educational interests . 
. . of the United States" must also show that his or her "services ... are sought by an employer in the 
United States." The latter phrase embodies the job offer requirement. Thus, the statute acknowledges 
that every foreign worker who qualifies for classification under section 203(b )(2) of the Act "will 
substantially benefit prospectively the . .. United States," and imposes the job offer requirement on all 
those individuals, including educators with advanced degrees. 
When the regulation at 8 C.P.R. § 204.5(k) and its subsections were promulgated, the preamble to the 
regulation addressed the above issues: 
Some commenters also asked that the phrase "in the national interest" be defined. One 
commenter suggested that the phrase 
should apply to any alien who would substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States. The Act itself requires this showing of all aliens seeking to 
qualify as "exceptional, " but adds the "national interest" test to permit a job offer 
waiver for certain aliens who have already satisfied the "prospective national benefit" 
test. The Service, therefore, cannot equate the two standards. Congress has not 
provided a more particular definition of the phrase in the national interest. The Service 
believes it appropriate to leave the application of this test as flexible as possible, 
although clearly an alien seeking to meet the standard must make a showing 
significantly above that necessary to prove "prospective national benefit." 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 will be judged on its own merits. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991). A condensed version of the above passage appeared in 
NYSDOT at 216-17. The quoted passage rebuts counsel's contention on appeal that the "prospective 
national benefit" test is identical to the "national interest" test. 
Counsel contends that, in addition to setting forth a legal basis for the waiver claim "within the context 
of not only the NCLB Act, but also the Obama administration's current initiatives," the petitioner also 
established her "detailed qualifications and achievements. However, the decision did not 
present even 
one comparable candidate having at least the equivalent accomplishment as that of [the petitioner] to 
support its determination." Counsel further 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 US CIS-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 does not explain how the petitioner 's "detailed 
qualifications and achievements" meet the NYSDOT threshold for the waiver. The burden is on the 
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petitioner to establish eligibility, not on the director to locate and identify a "comparable candidate." 
In visa petition proceedings, it is the petitioner 1s burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. 
Counsel claims: "a new thought process must be designed by USCIS with respect to NIW petitions by 
'Highly Qualified Teachers' instead of routinely applying the Matter of New York State Dept. of 
Transportation generically." As a precedent decision , NYSDOT is binding on all USCIS employees in 
the administration of the Act. See 8 C.F.R. § 103.3(c). Counsel claims that NYSDOT, which 
concerned a bridge engineer, "obviously is good in 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." The three-part national interest test in NYSDOT is, by design, broad and flexible. It does 
not include specific evidentiary requirements that only an engineer could satisfy, and its application is 
not, and was not intended to be, limited to engineers. 
Counsel claims that NYSDOT "requires overly burdensome evidence on the qualification [sic] of the 
self-petitioner, identical to EB-1 extraordinary requirements when the law makes it available to those 
either 'with advanced degree' or 'exceptional ability."' The evidentiary requirements to establish 
extraordinary ability, listed in the regulations at 8 C.F.R. § 204.5(h)(3), are neither identical nor similar 
to the guidelines in NYSDOT . 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 of that application. 
Counsel asserts that "the Director failed to explain why NCLB[A] was undermined ," but counsel has 
not established that the NCLBA has any relevance to this proceeding. Counsel has relied extensively 
on the NCLBA, but in doing so counsel has imposed no presumption of eligibility that the director 
must rebut. Counsel devotes several pages of the appellate brief to a discussion of details of the 
NCLBA and related federal initiatives, but these passages are all general assertions about education 
and education policy in general with no bearing on the specific qualifications of the petitioner. As 
such, they amount to another attempt to establish a blanket waiver for teachers, or at least "highly 
qualified teachers. " While Congress has the authority to create such a blanket waiver, it has not done 
so, through passage of the NCLBA or any other legislation. 
Improving public education would serve the national interest, and a foreign worker who had made 
demonstrable progress in that area, at a nationally significant level, could have a strong claim for the 
waiver. The petitioner, however, has not shown that her work has had or is likely to have a national 
impact on educational achievement. The petitioner has not shown direct influence beyond the students 
in her own classroom. 
Counsel claims that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but the record contains no documentary evidence 
to support this claim. Counsel's assertion is not sufficient. See Matter of Obaigbena, 19 I&N Dec. 
534 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. 506. Also, high student achievement would not 
suffice to qualify the petitioner for the waiver without evidence showing that other jurisdictions are 
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adopting original methods devised by the petitioner, thereby improving performance outside of her 
own classroom. 
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."' The quoted phrase does not 
appear in the director's decision. Counsel continues: 
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 
Case File. By requiring the petitioner to submit 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 USCrS-Texas Service Center highly speculative, without factual basis 
and rather drawn in thin air. 
The mandate for 'flexibility in the adjudication of NIW 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. 
Counsel repeats the list of the petitioner's cetiificates , acknowledging her partiCipation at an 
"Environmental Education Center" and at a "STEM Fair"; her "perfect attendance" for April 2007; and 
her general diligence as an educator. Counsel does not explain how any of these documents 
establishes that the petitioner 's accomplishments are "incomparable" or that she has had any effect on 
public education beyond the local level. 
Counsel asserts that the NCLBA did not merely imply that USCrS should grant the waiver to "highly 
qualified teachers ," it "required" USCIS to do so. The text of the statute does not mention immigrant 
teachers, labor certification, the national interest waiver, or the phrase "national interest." The 
NCLBA does not establish or imply a blanket waiver for teachers. Congress has directly established a 
blanket waiver for certain physicians, as described at section 203(b )(2)(B)(ii) of the Act; Congress has 
taken no comparable action on behalf of teachers. 
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 ability," 
even though one need not qualify as an alien of exceptional 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 
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Page 12 
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. 
Counsel asserts that schools that fail to meet the NCLBA's standards will lose federal funding, and 
therefore risk "not only ... closure of these schools but loss of work for those working in those 
schools." Counsel provides no evidence regarding school closures under the NCLBA, and no 
explanation as to how the petitioner's efforts at one elementary school would prevent multiple school 
closures. The claim, therefore, is unsupported. See Matter of Obaigbena, 19 I&N Dec. 534 n.2; 
Matter of Ramirez-Sanchez, 17 I&N Dec. 506. 
The petitioner 
has not established a past record of achievement at a level that would 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 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."). 
As is clear from a plain reading of the statute, it was not the intent of Congress that 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, 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; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.