dismissed EB-2 NIW Case: Education

(b)(6)
DATENQV 2 5 2013 
INRE ; Pethioner: · · 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u,s. ))epartment of Homeland Security 
U.S. Citizenship and lmmigratiqn Services 
Administrative Appeals Office (AAO) 
20 M.~ssachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. CitiZenship . 
and Immigratioll 
Services 
FILE: 
PETfriON: Immigrant Petition for Alien Worker as a Member of the Professions Bolding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.<;: § 1153(1>)(2) 
dN BEHALF OF PETITIONER: 
lN:STRlJCTIONS: 
Enclosed please find the decision Of the AdministratiVe Appeals Q{flce (AAO) in your case. 
This is a ilon-preced~ilt decision. The AAO does not announce new constructions of law nor establish agency 
poliCy th.tough non-precedent decjsions. If you believe the AAO incorrectly applied current law or poli~y to 
· your case or' if yo\! seek to present new fact~ for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion mu.st be filed on a Notice of Appeal or Motion (Fo!lD I"290B) 
within 33 days of the date of this. decision. Please reView the Forlll I~290B instructions at 
httQ:Uwww.uscis~gov/forms for the latest information on fee, filing location, and ot.ber requirements. 
See qf.so 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
Lz Ron Rosen r 
Chief, Administrative 
Appeals Office 
'-. www.gsds.gov 
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NON-PRECEDENT DECISION 
Pag~ 2 
DISCUSSION: The Director, Texas Service ~nter, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeaL Tb~ AAO will dismiss the appeal. 
The petitioner seelq; 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 Ute professions holding an advanced degree. The 
petitioner seeks employment as art elementary school te_acher. in 
Wben the petitioner filed the petition, she taught second grade at _ _ 
_ Maryland. The petitioner asserts that an exemption from the requirement of a job offer; 
and thus of a labor certification, is in the national interest of tbe United S~tes. The director found that 
the petitioner qualifies for classification as a member of the professions holding an ~<lvanced degree, but 
thattbe petitioner h.a.~ not established that an-exemption from the requirement of a job offer would be in 
the national interest of the United Stat_es. 
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 h_olding advaQ.ced degrees or their equivalent or who 
because of their exeeptional ability in the sciences, arts, or b~s.iness, 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 
ate sought by an employer in the United States. 
(B) Waiver ofJob 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 art ali~Ii'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 . memb~I: 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 not the pertinent regulations defin.e the term "national interest.'' Additionally, 
Congress did not provide a specific definition of "in the rtati~nal interest." The Conunitt~e 011 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 inunigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
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Page 3 
Supplementary information to regulations illlplem_enting 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 a_n,d lnlllligration Servic~s (USCiS)] believe~ it 
appropriate to leave the application of this test as flexible as possi_ble, 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 "exc~ptional."] T_he 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 ~ts own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, Z17-18 (Act-~ Assoc. Comrn'r 1998) 
(NYSDOT), has· set forth several factors whiCh must be considered when evaluating a request f.or ·(! 
national · imer~st waiver. First, a petitioner must establish that the alien se.ek.S employment in an atea of 
substantial intrinsic merit ld. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. I d. Finally, the petitioner seeking the waiver must establish that t_he alien will serve 
tJ;re national i.o.ierest to a substantially greater degree than would ail available U.S. worker having the 
same minimum qualifications. Id. at 217-18, · / 
While the national interest waiver hinges on prospective national benefit, the petitioner must est~blis_h 
that the alien's past reGard justifies projectionS of future benefit to the national interest. I d. at 219. The 
petitioner's assutance that the alien will, in the futwe, s~rve the natio.nal interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included bere to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstr~ble prior 
achievements, an.d wl:l.ose penefit to the national interest would thus be entirely speculative. Id 
The tJSCIS 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 generaJ.ly ·subject to tb.e 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, ot as a member of the professions holding an 
advanced degree, that alien cannot qualify "for a waiver just by demonStrating a degtee of experti.se 
significantly above that ordinarily ·· encountered in his or her field of expertise. · 
The petitioner filed Form I-140, IIfitiligrant Petition for Alien Worker, on. J1me 26, _2012. In an 
accompanying statement, counsel stated that the petitioner seeks the waiver "based on her Master's 
Degree in Education; almost ... (15) years ofpost-baccalaureate progressive work experience ... 
and most importantly; the awards and distinctions she received a,s ~ teacher, among others." 
Academic degrees, experience, and recognition for achievements can all support a claim ot 
exceptiona_l ~bility. See 8 C.F.R. §§ 204.5(k)(3)(li)(A), (B), and (F), respectively. Under the plain 
wording of section 203(b )(2)(A) of the Act, aliens of exceptional ability remain subject to the job 
offer requirement. Therefore, evidence of exceptional ability cannot suffice to qualify the petitioner 
for the national interest waiver ofthat requirement. -
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NON-PRECEDENT DECISION 
Page 4 
Counsel stated that the petitioner's ''request for National Interest W(;liver is based on the 
improvement to the United States Education more particularly in the field of Education, -which she 
has actually been fulfilling ... in the St<1,te of Maryland since 2007." Counsel cited . no eviden~e to 
estabiish the extent to which the petitioner's past work has improved education in the United States. 
The petitioner Submitted copies of aw<1,r<;l certificates she has received over the course of ber teaching 
career. Most of the certificates ate ftom the Philippines, and are local or regional ii1 nature. The 
petitioner received the two most recent certificates in the United States. Both of them are local irt 
ilatute. One is a "Science Achievement Certificate" indicating that the petitioner's class placed third 
in the ''2012 SCience Fair." The other is a "Certificate of Appreciation'' from 
"for successfully jmplementing the Number Worlds Pilot 
Program" in 2011. The petitioner received other certificates in the Philippines Cllld the United Sta:tes, 
fot 'bet completion of training progra_ms or participation in various activities. 
The petitioner submitted letters from teachers, administrators, (!.nd parents of students at schools 
where she has taught. These witnesses indicated that the petitioner is a competent and valued 
teacher, but they did not establish that the petitioner's work has had more than a local impact. 
Counsel asserted that ·statements from the petitioner's students show that the petitioner's work 
"completely and realistically re-cre(!.ted t_he young lives of [those] students worth living." Counsel 
quoted from the claimed statements, but the record does not contain the statements themselves. The 
t1nsupporte,d assertions of counsel do not constitute 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). Also, sucb statements attest to the depth, but not the 
breadth, of the petitioner's impact; they do not show that the petitioner's work has had an effect 
beyond the loc(!.llevel. 
· the director issued a request for evidence. on November l9, 2012. The director quoted from Several 
witness letters, but stated: ''no corroborative primary evidence .has been presen.ted specifying the 
direct role the beneficiary's work has played in the field of Education as a whole.'' The director 
instructed the petitioner to. "submit documentary evidence that the beneficiary's contrib11~ions will 
impart national-level benefits .... The petitioner must establish that the benefiCiary has a past record 
of specific ptiot achievement with some degree ofinfh,1ence on the field as a whole.;' 
In response, (;ounsel stated: 
Immigration Act of 1990 (IMMACT 90) which ~nacted ... the 'National Interest 
Waiver('] included 'educators' as among the. targets of this legislation, specifically 
stated -"-' 'this bill provides for vital increases for entry on the basis of skills, infusing 
the ranks of our scientists aiid engineers and ed.ucators with n~w blood and new 
. . idea.s.' 
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NON~P[?f;(;EDENT DECISION 
Page 5 
Elsewhere in the brief, counsel c:larified that the quoted language comes not from the statute itself, 
but from comments tnade by then-Pre~ideQ.t George H.W. Bush as he signed the legislation. 
IMMACT 90 did in fact create the national interest waiver, .at)d the president mentioned "educators" 
in hi~ remarks, but it does not follow that a blanket waiver for educators was either the intent or the 
result ofthe legisl;~.tion. The same stat~te plainly subjected professionals ~ including "scientists an(j 
engineers and educ .ator~" · ~ to the job o(fer requirement 
. Col}.nsel contended that the NYSDOt decision provided no specific definition of the "national 
interest," and that Congress filled tb{s void with the passage of the No Child Left Behind Act 
(NCLBA): 
Congress bas in effectrema~:.k,ably engraved the, missing definition upon the concept 
of 'in the national interest,' centered on th~ 'Best Interest of American School 
Children.' More importantly, U.S. Congress also provided the means to achieve this 
now defit:te<i 'in the national interest,' i.e., 'Hiring. and Retaining Highly Qualified 
Teachers.' Interestingly, "NGLB Act" also specified the 'Standard of a Highly 
Qualified teacher.' 
Indeed, the "NCLB Act" l1as :elucidated the previously dark avenue for educator­
national interest waivers. 
With tl.ljs, tbe Service now ha~ a definite working took in defining what is 'in the 
national interest' including the :clear standard on what qualifications must be required 
from NlW teacher self-petitioners, as mandated by No Child Left Behind Act of 
2001. . . 
In discussing the NCLBA, above, counsel placed several phrases i.n quota_tion marks, but none of 
those phrases appears in the text of the NCLBA. The tetrn "best interest," with respect to children, 
appears only in provisions rela.ting to ,homeless students. The NCtBA contains no mention of the 
national interest waiver or any i:rnrnigration benefits for foreign teachers, and. it did rtot amend 
section 203(b )(2)(B) of the Act (which created the waiver). Counsel contended that Congress 
specifically intended to make the waiver available to "highly qualified teachers" when it passed the 
NCLBA, and that ''favorable decisions for the NIW teachers" is thereby "honoring the 
Congressional intent in No Child Left Behind Act of 2001.'' Counsel; however, cited no specific 
Iangilage from the statute itself or its l~gislaHve history to support this claim. · 
Statutory interpretation begins with the language of the statute its~lt Pennsylva.nia Department of 
P~Jb/i(: Welfare v. ·Davenport, 495 U.S. 552 (1990). Statutory language must be given conclusive 
weight unless the legislature expresse~ an. intention to the contnuy. Int 'l. Brotherhood of Electrical 
1 Workers, Local Onion No. ·· 474, AFL-C/0 v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). H~re, the 
petitioner has not established tb.at Congr~ss intended to exempt teachers from the. job offe~ 
requirement, either through section ; 203(b )(2) of the Act, the NCL13A, or any other federal 
legislation. Congress's only direct st~tement on the matter, at section 203(b)(2)(A) ofthe Act, has 
been to apply, not waive, the job offer requirement. 
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' Page 6 
The NCLBA did not amend section 203(b)(2) of the Act or otherwise mention the na,tional interest 
waiver. In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub;L 
106-95 (November 12, 1999), specifically amended the Immigration and Nationality Act by adding 
section 203(b)(Z)(B)(ii) to that Act, to create special' waiver provisions for certain physicians. 
Congress not only can amend the Act to Clarify the waiver provisions, but has in fact gone so in 
. direct response to NYSDOT: ·Counsel has not established that the NCLBA indirectly implies a 
similar legislative change. 
The NCLBA and other federal initiatives establish that the federal govertunent places a priority on 
improving the quality of education, but counsel did not esta.blish 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, remai_n st,~bj'ect to 
the job offer requirement. 
. Counsel asserts that the petitioner's "proposed employment is national in scope" becat,IS~ of the 
"National Priority Goal of Closing the Achievern.~mt Gap." "Highly Qualified Teachers," as a class, 
play - ~ significant colle.ctive role in implementing the provisions of the NCLBA. it does not follow, 
hovvever; that every such teacher individually qualifies for special immigration bc;mefits as a result, 
or that collective benefit justifies.ablanket waiver for every such teacher, when the waiver otherwis~ 
rests on the specific merits of individual intending immigra1ltS. 
Counsel quoted President Ob~a: "I'm committed to moving our country to the middle to .the top of 
the pack in science and tnath education over the next decade."· Counsel contended that the' presid:Cllt 
has thus "effectively set the critical timeline within which to meet [this] goal. ... the Chief 
E_xecutive of the country has himself determined that the national interest would not be served if the 
petitioner was required to obtain a labor certificate [sic] for the proposed employment" Counsel did 
not establish that granting the waiver to the petitioner would make a difference in meeting "the 
critical timeline.'; While the president's 
remarks represent one of the current administration's policy 
goals, those words do not supersede standing legislation, regulations and case law. 
CounSel cited a report indicating that the Teach for America program has produced disappointing 
results. this assertion would be relevant if the only two avaJlable options were to continue relying 
on the flawed Teach for America program, or to grant the national interest waiver; but this is not the 
case. ln repeatedly citing the .NCLBA in support of the waiv.et claim, counsel did not cite any 
evidence to show that the NCLBA had produced better results than-teach for NUerica. More 
importantly, the purpose of the present proceeding is not to compare the merits .of Teach for America, 
and the NCLBA, but rather to determine whether the petitioner qualifies for an immigration benefit. 
Counsel cited a 2010 Department of Education r~port, ES.EA Blueprint for Reform. Counsel stated: 
The U.S. \ Department of Equcation's finding that meeting the NCLB Act's 
requirements fot the "highly qualified" standard "does not predict or ensure that 4 
· teacher will be successful at increasing student learning" beca~se while the NCLB 
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Page 7 
NON-PRECEDENT DeCISION 
requirements set m1mmum standards for entry into teCJ.cbing of core academic 
_subjects, they have not driven strong improvements in what matters most: the 
effectiveness of te-achers in raising student achievement which demonstrates that 
teacher effectiVeness contributes more to improving student academic outcomes than 
any other school characteristic. · 
The finding that "the. NCLB requiremen~~ , . have not driven strong improvements in .. ·>. tbe 
effect"iveness of teachers in raising student achievement" appears to undermine the claim that the 
NCL~A has set the standard for the natiomil interest With respect to education. -
Counsel asserted that "the U.S. workers in the teaching industry are not as competitive in the job 
market against their foreign counter-parts Who have advanced degree or equivalent and are fully 
:certified." Cou.nsel cited no support for this general assertion, except fot "the case of [the] Teach for 
A.Iilerica Program ! ' Counsel did not demon.strate that the ''recent college graduates" in Te.ach for 
America are representatiVe of "U.S. workers in the tea~hing indu.stry. '' · 
Counsel claimed that the labor certification process presents a "dilemma" be.ca'use "The United 
States Department of Labat minimum education requirement Report. for High School Teacher is just 
a ba~helor's degree," but ''the employer is requited by No Child Left Behind ...• to employ highly 
qualified teach~ts . " Counsel as.serted: "Doi.ng a labor certification process for the beneficiary ... 
[would] require only a bachelor's degree, [and therefore] may not meet the objective of employers to 
. . . . . . . . . - . I . 
hire highly qualified teachers pursuant to No Child Left Behind (NCLB) Law [and] other federal 
pronou.i1ce111ents." · · · 
Section 9101(23) of the NCLBA defines the term "highly qualified tea~her." Briefly, by the 
statutory definition, a "highly qualified" school 
teacher: 
e'' has obtained full State certification as a t~acber or pCJ.ssed the State teacher licensing 
ex~mination, and holds a .license to teach iii such State; : · 
• balds at le(J.st 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 existing labor 
certification process. The minimum degree requirement, which counsel has emphasized, is the same 
for labor certification as it is for a highly qualified teacher (i.e., a bachelor's degree). 
Counsel stated: ' 
there is more likeli}lood than not as dictated by experience that replacing 'Highly 
Qualified Teachers ' with those having only minimum qualification that these 
federally funded schools would fail to meet the high standard required under the No 
Child Left Behind {NCLB) Law r~stJlting not only [in] closure of these schools but 
_loss of work for those working in·those schools. 
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NON-PRECEDENT DECISION 
Page 8 
Counsel identified no "federally funded school" that has closed as a result of failing to meet NCLBA 
st®dards. Attributing this claim to "experience'' cannot suffice in this regard. Also, counsel has not 
shown that awarding the waiver to the petitioner would prevent school closures on a nationally 
significant scale. This assertion is, instead, effectively another claim in support of a blanket waiver 
for '·'Highly Qualified Teachers," as the national effect would be collective rather than individual. 
Counsel cited a need for improvement in science, technology, engineering and mathematic~ (STEM) 
education, but the record does not establish that the petitioner specializes in teaching those subjects. 
Therefore, counsel has not established the relevance of this assertion, even if one teacher would be in 
<fpOsition to resolve the national crisis in teaching those subjects. 
Turning to the petitioner's individual qualifications, counsel listed several previously submitted 
exhibits, but did not explain how these exhibits satisfy the NYSDOT national interest test. A 
successful teaching cateet does not establish or imply eligibility for the waiver. 
As em "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 Match 15, 2014) from filing 
any employment -based immigrant and/or nonimmigrant petition .. ."ariSing ftom 
Willful violations of the H-1B regulations at 20 C.F.R. Pan 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 fitrnly established a life here in the United States. 
The temponuy debarment order is not grounds for granting a permanent immigration benefit. The 
assertion that the petitioner "has already fhmly e~blishec:l a life here in the United States'' does not 
establish eligibility for the na:tional interest waiver. · 
The director denied the petition on April4, 2013. The director found 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'$ ~vidence and· determined that it does not 
show that the petitioner's work has had a significant impact beyond· the districts where she has 
worked. The director paraphrased NYSDOT by stating: · 
A waiver of the job offer is not warranted solely for the purpose of ameliorating a 
local labor Shortage, because the labor certification process is already · in place to 
address such shortages. Similarly, the Departiiient of Labor allows a prospective U.S. 
employer to specify the minimul11 education, training, experience, and other special 
requireme~ts needed to qualify for the position in question. 
Similar language appears in NYSDOT at 218. That same decision specified "elementary school 
teachers'' as an example of an occupation with substantial intrinsic merit, but that lac.ks n_ational 
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NON-PRECEDENT DECISION 
Page 9 
scope. /d. at 217 n.3. · The director concluded that the petitioner had not :established eligibility for 
the waiver. 
On appeal, counsel contends t.h(lt the director erred by focusing ori NYSDOT, because Congress 
passed the NCLBA "more tl).an a decade after [the passage of] IMMACT 90 ... and three yeats after 
NYSDOT was designated as a precedent decision." Counsel does not identify ~y provision in the 
NCLBA that d.irectly amends the Immigration and Nationality Act· or otherwise affects the 
immigration benefits available to teachers. 
Cou.n~el contends that NYSDOT "requires overly bilrdensome evidence on the qu<:1Jification of the 
self .. petitioner, identical to EB-1 extraordinary requirements when the law makes it available to those 
either 'with an advanced degree' or 'exceptional ability."' The e'videntiary requirements to establish 
extraordinary ability appear at 8 C.F.R. § 204.5(h)(3). Those requirements .are n,ot "identical" to the 
guidelines in NY.Sl)OT, and counsel has identified no strong similarities. Concerning counsel's 
assertion that the waiver is "available to those either 'wi~h an advanced degree' or 'exceptional 
ability,''' those qualifications make one eligible to apply for the W(liver, but do not guarantee the 
(lpprov(ll of that application. 
Counsel stated that the director, in the request for evidence, 
requhed v(lgue and overly burdensome evidence more fitting to the cause of an 
Engineer. US CIS is expected to stipulate clear basis for eviden~es requested and at 
least meritoriously rebut the evidences submitted in the initial filing and in the 
response to Request for Evidence. Here, the Director failed to explain why NCLB 
was undermined when the law provides t.he standards to achieve the national 
educational interest. Unlike in the Matter ofNew York State Dept. ofTro.nsportation, 
United States Congress legislated NCLB to serve as guidance to USCIS in granting 
legal residence to 'Highly Qualified Teachers.' 
The relevant points in NYSiJOT are not specific to engineers. Counsel's claim that USCIS must 
"rebut" the petitioner's previously submitted evidence implies that the petitioner's eVidence 
established an initial presumption of eligibility that does not actually exist. Counsel asserted tb~t 
"the director fai.led to exp}<;iin why NCLB was undermined;" but counsel identifies no specific 
legislative ot regulatory provisions that exempt school teachers from NYSDOT or reduce its impact 
. on them. In stating "Gongtess legislated NCLB to serve as gui<iance to USCIS," counsel claims 
knowledge of Congressional intent, but cites no source for this knowledge; . the statute itself offers no 
support for counsel's claim. The text of the NCLBA does not mention the Department of Homela.nd 
Security, USCIS, foreign teachers, the job offer requirement, labor certification, the nati6rial interest 
waiver, or the phrases "national interest" or "national educational interest." Its only references to 
immigrants concern "immigr(l.llt students" and ''immigrant children and youth." 
Counsel stat~s: "Assuming NYSDOT is apposite, the perennial question is what is the standa.rd to be 
met in otdet that an NIW petitioner's proposed employment will have national-level benefit." This 
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NON-PRECEDENT DECISION 
Page 10 
passage incorrectly implies that NYSDOTs applicability is debatable. As a designated precedent 
decision, NYSDOT is binding on all USCIS employees. See 8 C.F.R. § i03.3(c). 
Cou.psel repeats, word, for word, several pages of assertions from the response to the request for 
evidence, discussing the NCU3A and other federal education initiatives. There is no support in 
statute, regulation, or case law to support counsel's pti.mary contention that the overall importance of 
education outweighs the statutory job o,ffer requirement that remain~ in effect. NYSDOT established 
that US CIS ~ill not declare ''blanket waivers for entire fields of specializatior." fd, at 217. Since 
the fi'I,Jblication of NY,SDOT, Congress has created only one blanket waiver, for certain physicians as 
described at section 203(b )(2)(B)(ii) of the Act. US CIS will not infer an implied blanke.t waiver 
from legislation, such as the NCLBA, that contains no immigration-related provisions for the 
classification that the petitioner seeks. 
Counsel states: 
· USCIS-Texas Service Center has not ~pecitied whatit meant by 'any contributions of 
unusual significance that would wa:rta.nt a national interest waiver.' There is no 
clarity on this particular requirement -and yet, the Director has easily dismissed the 
incomparable accomplishments of [tbe petitioner] as submitted in her Case File. By 
requiring the petitioner to s.ubfilit evidence of ambiguous nature · is 'unduly 
burdensome' and in effect tantamount to reqUiring 'impossible evidence' for being 
extremely subjective. 
The lack of· dear standard on this particular requirement leaves the finding of 
insufficiency by USCIS-Texas Service Center highly speculative, without factu.al 
basis and rather drawn in thin ait. 
The mandate for 'flexibility inthe adjudication ofNIW cases' ... must be construed 
liberally rather tha,n 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 
waiver~ to 'Highly Qualified Teachers' who have already been serving the cause 
· instead of requ.iring la,bor certification which may only reveal uncommitted U.S. 
workers with 
minimum education qualification. · ' 
The petitioner has not submitted evidence to eStablish that her accomplishments a,re "incomparable" 
as counsel claims. After suggesting that the director's decision is, in counsel's Words, "drawn in thin 
air," counsel asserts that the NCLBA did not merely imply that· USCIS should grant the waiver to· 
"highly qualified teachers," it ''required;' USCiS to do so. The NCLBA does not establi.sh or imply a 
blanket waiver for teachers. 
Cmmsel asserts tbat the petitioner "is an effective teacher in raising student achievement in STEM" 
and points to bet "proven success in raising proficiency of her students." Counsel cites no evidence r 
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NON-PRECEDENT DECISION 
Page 11 
on '!.ppe!,tl to support these claims, which come ·a page !Uter counsel cited statistics showing thaf• 
remaii\S an underperforming district in Maryland. Counsel's assertions are not evidence. 
MattetofObaigbena at 634 n.2, citingMatterofRamirez-Sanchetat 506. 
Co®se:.l asserts -that the petitioner "has submitted overwhelming evidenGe" of eligibility, and lists 
several previously submitted exhibits under the heading "Awards and Recognition_.'' The petitioner 
has not-established that these materials a,r~ "overwhelming evidence" in her favor. Loc.al rec.ogb.itjol) 
can help support a claim of exceptional ability, Under the.regul'!.t.ion at 8 C.F.R. § 204.5(k)(3)(ii)(F), 
but exceptional ability does not establish or ~ply eligibility for the waiver. 
The petitioner -has not established a past record of achievement at a, .level that would justify a waiver of 
. tl:le job offer requirement. The petitioner need not demonstrate notoriety on: the scale o~ national 
· acclaim, but the national interest waiver ·contemplates that the petitioner's infl~erice be national in 
scope. NYSDOT at 217, n3. More speei_fically, tbe petitioner ~·must ~learly present a significan,t benefit 
to the field of endeavor.;' !d. at 218. See· also ta. at 219, n.6 (the alien must have "a past :histoty of 
demonstrabh~ achievement with some degree of hrllueiice on the field as a whole.''). 
. ' . 
. . . As is clear fro in a plain reading of ·the statute, it w~s not the intent of Congress that every person 
qua.lifjed to engage in a profession, such as tead1illg, in the United States shoul.d be exempt from the 
requirement of a job offer beised on national interest. Likewise, it does not appear to have been t~e 
intent of Congress to grant national inter~st waivers on UJe basis of the overall importance of a given 
profess.ion, rather than on the merits of the individual alien. On the-basis of the evidence submitted, the 
petitioner bas not establislled t~at a waiver of the requirement of an approved .labor certification will be 
·in the national interest of the United States . 
. · The AAO will dismiss · tb.e appeal for the above stated tea:SollS. In visa petition proceedil)g$, it ~s the 
petitioner's butdert to establish eligibility for t}le immigration benefit sought. Section 291 of the Act, 
8 lJ.S;C. § 1361; Matter ofDtiende, 26 I&N Dec .. 127: 128 (l31A 2013). Here, the petitioner has not 
met, fu.~t burden. 
ORDER.: The appeal is dismissed.