dismissed EB-2 NIW Case: Education

(b)(6)
DATE : FEB 2 6 2014 
INRE: Petitioner: 
Beneficiary : 
Office : TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrativ e Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an AI ien 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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
j!JOe;tdn~u 
C 
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 I-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as a 
middle school science teacher. The petitioner has taught for :.....------ - - ~-~- J 
since 2009. At the time of filing, the petitioner was working for 
_ 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 she 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 she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. !d. at 217-18. 
The petitioner has established that her work as a middle school science 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
her past record justifies projections of future benefit to the national interest. /d. at 219. The petitioner's 
subjective assurance that she will, in the future, serve the national interest carmot suffice to establish 
prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the petitioner, rather than to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. /d. at 220. Moreover, it cannot 
suffice to state that the petitioner 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 U.S. Department of Labor through the alien employment certification process. /d. at 221. 
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The pet1t10ner filed the Form I-140 petition on June 29, 2012. In a June 28, 2012 Jetter 
accompanying the petition , counsel stated that the petitioner' s national interest waiver is based on 
her advanced degree, extensive experience, and "numerous achievements and citations." Academic 
degrees, occupational experience, and recognition for achievements are elements that can contribute 
toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A) , (B), and (F), respectively . 
Exceptional ability, in turn, is not self-evident grounds for the waiver. See section 203(b)(2)(A) of 
the Act. The U.S. Citizenship and Immigration Services (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. NYSDOT at 218, 222. Therefore, whether a given individual seeks classification 
as an alien of exceptional ability, or as a member of the professions holding an advanced degree , that 
individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above 
that ordinarily encountered in her field of expertise. The national interest waiver is an additional 
benefit , separate from the classification sought , and therefore eligibility for the underlying 
classification does not demonstrate eligibility for the additional benefit of the waiver. 
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 benefit s of her work would extend beyond her middle school students such that they will 
have a national impact. NYSDOT provides examples of employment where the benefits would not 
be national in scope: 
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 a 
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 school teacher 
has influenced the 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, school staff, parents, and 
personal acquaintances discussing her work as a teacher. As some of the letters contain similar 
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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. 
stated: 
[The petitioner] joined the teaching staff of two years 
ago. Since she has joined our school, I have closely seen how she has brought rigor and 
engaging science lessons and activities to our middle school students. She is also involved in 
district-wide endeavors to make science education better for all students in our school 
district. I am glad to recommend [the petitioner] for granting her . . . petition will 
undoubtedly benefit science instruction not only in our school but also in our school district. 
* * * 
I have collaborated numerous times with [the petitioner] to extend her science lessons to our 
Technology Education class. She generously shares her lesson plans, willingly stays after­
school to meet and discuss about her lessons, and accommodate students' presentations of 
their science-related technology projects during her classes. 
* * * 
As a younger teacher than [the petitioner] in terms of age and experience, I look up to her as 
a mentor. I am amazed with her accomplishments, foremost of which are her two teaching 
certificates from the Maryland State Department of Education Certification - Advanced 
Professional Certificate in Chemistry 7-12 and Advanced Professional Certificate in Middle 
School Science 4-8. She is also a sought-after Science Fair Committee Chairman for middle 
school, an MSA [Maryland School Assessment] Math Review tutor, and a 
· _ scorer. She has established herself to be a good role-
model and a very reliable mentor. 
comments on the petitioner's effectiveness as a science teacher, willingness to share 
lessons, flexibility, Advanced Professional Certificates from the Maryland State Department of 
Education, school activities, and reliability as a mentor, but does not indicate how the petitioner's 
impact or influence as a teacher is national in scope. In addition, fails to provide 
specific examples of how the petitioner's work has influenced the field as a whole. 
former Assistant Principal at 
stated: 
I can vouch for her exceptional skills as a teacher, and she serves as an inspiration to our 
children in Her passion for teaching and also her desire to provide her 
students with relevant and updated information are manifested in her active involvement in 
various professional development activities. She chairs the middle school science fair 
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committee, is an active member/tutor of the Math MSA Review Team, and regularly works 
for the district's Biology Bridge Project. 
As her immediate supervisor, I have known [the petitioner] as a competent, dedicated, 
hardworking , and friendly colleague. [The petitioner] interacts professionally , ethically, 
legally, and respectfully with parents, students, colleagues and supervisors. She is a good 
example for colleagues, students, and community in appearance, demeanor, and work ethics. 
I have observed her teaching performance and how she values and respects the individuality 
of her students. She is a very resourceful, creative, and flexible educator. She makes herself 
available to her students before and after work hours to listen to their concerns and problems 
especially related to academics. On the personal level, I could vouch for her integrity, 
discipline, humility, and compassion for her students. 
points to the petitioner's exceptional teaching skills, passion for education, participation 
in professional development, school activities , positive interactions with others, and personal 
qualities, but her observations fail to demon strate 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 middle school teachers. 
'-;========-=~ a parent whose child was taught by the petitioner at 
stated: 
I was fortunate enough to meet [the petitioner] during the 2011-2012 academic school year. 
It was during this time frame that she served as my son' s science teacher. My twelve year 
old was diagnosed with Autism almost a decade ago, so I was wonied about the progress that 
he would make in her class. After conferencing with [the petitioner], she was not only 
sympathetic to my concerns , she was open to regularly talking with me to ensure that his 
needs were met. Over the course of the year, my son made incredible progress in her class, 
earning no less than an A- each marking period. With [the petitioner's] dedication to him, 
and the other students in her care, he has been able to retain and share many of the skills and 
concepts she taught him. 
* * * 
Serving as a science teacher, she is a positive role model for female students who may be 
interested in pursuing a career in that field. She has had such a positive impact on the 
education of the students that she has interacted with. I know this first-hand since she was 
able to meet the needs of my son while he was in her class . She was always available to 
meet with her students and parents to discuss how all involved parties could maximize the 
learning opportunities. 
comments on the progress made by her son in the petitioner's class, the petitioner's 
positive interactions with students, and the petitioner's effectiveness as an educator, but does not 
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indicate that the petitioner's work has had, or will continue to have, an impact beyond 
The petitioner's references praise her abilities as a science teacher 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.F.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." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
coiToborative 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 Certificate of Aooreciation from the Director of the Commission on Higher Education, 
for presenting a paper in the conference entitled \ __ 
·· (March 8, 2006); 
2. A Certificate of Appreciation from 
for serving as a panelist in "the 
. . held on October 12, :.Z.UUS"at 
3. A Certificate of Appreciation from ~ ~~, - - --- 0 ~==::::::== for participation as a 
-" research presenter on the topic 
4. A Certificate of Recognition from the Dean of the College of Science, tor 
organizing" ··(July 22, 2005); 
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50 A Certificate of Appreciation from for presenting a paper on the topic 
_1_'-.\...o \..IUJ.\..<.1.1 ..L.l.l ..... ..~..~.o ... ..._-..~.. ....__.~ ...... --..................... . - - - ~~ 0 -· ~----
2004); 
60 A Certificate of Recognition from _ ~~- _ ~ 
m the occasion of the founding anniversary of the university's vanous 
colleges (July 20, 2005); 
7 0 A Certificate of Commendation from the for 
participation as a judge during the } 
(October 27, 2003); 
80 A Certificate of Commendation from the 
for serving as a resource speaker at the ' 
(April 30, 2003); 
90 A Certificate of Appreciation from the Mayor of the Municipality of for 
"support and commitment in the successful implementation of the Community Solid 
Waste Management Project" (March 28, 2003); 
100 A Certificate of Appreciation from 
"for having served as facilitator during the Echo-Seminar Workshop on 
Instructional Materials Writing & Development sponsored by the College of Arts & 
Sciences 0 0 0 held at the '(February 27, 2003); 
110 A Certificate of Commendation from 
School for "services as a judge during the Annual Search for Toys 2002" at the High 
School Library (October 3, 2002); 
120 A Certificate "for participation in the _ 0 (June 7, 2001); 
130 A certification that the petitioner delivered a presentation at .. ~-
(January 2001); 
140 A _________ ····- -rendered 10 years of continuous satisfactory service" (March 16, 1995); 
-A 
0 0 for having 
150 A Certificate of Appreciation from Research and 
Development Center for presenting a study "during the.1997 Annual In-House Review of 
Ongoing and Completed Research and Development Projects" (June 16, 1997); 
160 A Certificate of Appreciation from of Science for "services rendered as 
Tutor in the Science Tutorial Program" (March 30, 2007); 
17 0 A Certificate of Appreciation for participating in the Community Outreach and Extension 
Project of the 
on Solid Waste Management (October 23, 2006); 
180 A Certificate of Appreciation for participating in the Community Outreach and Extension 
Service of the College of Science, and Development Center 
on (May 18, 2006); 
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19. A Certificate of Recognition for participating in "· 
held on February 8, 2006 at the ~ ~ ~- - - -- ~~ -J __ -
20. A Certificate of Recognition for participating in "the Community Outreach and Extension 
Service of the College of Science on 'Water Analysis '" (September 10, 2005); 
21. A certificate from the Ocean Conservancy "for outstanding and dedicated service to the 
2003 and profound commitment to the manne 
environment"; 
22. 
#205 for perfect attendance in April 2012; 
23. A Golden Apple A ward from the principal at 
#205 for perfect attendance in February and March 2012; 
24. A Golden Apple Award from 
the principal at 
#205 for perfect attendance in January 2012; 
25. An Attendance Certificate from the principal at 
#205 for outstanding attendance in November 2011; 
26. A Certificate of Perfect Attendance for the period of August 22nct to October i\ 2011 
from the principal at 
27. An Attendance Certificate from the principal at _ 
#205 for outstanding attendance from August 29, 2011 to November 4, 2011; 
28. An Attendance Award from the principal at 
for perfect attendance in September 2008; 
29. A Perfect Attendance Certificate from the principal at 
School for January 2008; 
30. A "Great Overseer' Award" in recognition of leadership in the " 
, uly 31, 2008) ; 
31. 
petitioner earned a master's degree in Chemistry); 
32. A "Certificate of Recognition and Appreciation" from the 
where the 
Affiliation Campaign for 
school year 1993-1994; 
33. A Maryland Educator Certificate ; 
34. . Series Examinee Score Report; 
35. A Certificate of Eligibility from the ~--r--- -~ ~ - _ --- --u ~- --~----------.J 
36. A Report of Rating from the 
37. A member ship card for the 
America; 
38. A Notice of Eligibility for the American Federation of Teachers; 
39. A member ship certificate for the ____ - o - .. 
40. A member ship certificate for the C- ~- ------- ___ _ ' "0/J--~-
41. A membership certificate for the 
42. Membership certificates for the l 
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43. A membership card for the, _ 
44. A membership certificate for the _ 
45. A certificate of membership for the 
46. Membership certificates for the . 
47. Eamings statements; 
48. Academic records and transcripts; and 
49. Employment verifications. 
Again, academic records, occupational experience, professional certifications, membership in 
professional associations, and recognition for achievements are all elements that can contribute to a 
finding of exceptional ability, but exceptional ability is not sufficient to establish eligibility for 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 labor certification). 
NYSDOT at 218, 222. 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 awards she 
received (items 1 - 32) have more than local, regional, or institutional significance. There is no 
documentary evidence showing that items 1 through 49 are indicative of the petitioner's influence on 
the field of education at the national level. 
The petitioner submitted various certificates of participation, completion, and attendance 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. 
In addition, the petitioner submitted copies of her annual evaluation reports, periodic observation 
reports, ratings, and performance evaluation forms from 
Colleges. 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 educators and how her 
specific work has had significant impact outside of the institutions where she has taught. 
The petitioner submitted documentation indicating that she served as an advisor and examiner for 
degrees. The petitioner also submitted Master of Business Admimstrat10n hes1s 
that acknowledges the petitioner as her statistician and advisor. The petitioner, however, does not 
explain how the submitted documentation demonstrates her influence on th~ field as a whole. 
Additionally , the petitioner submitted articles that she authored entitled 
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,_I I ..... I / I I I I .r1 I I I I , I , t.._ , " "-,I \ J L J I l I ~_.1 l L !LA. ·~ ..I..- -...._ .... _.. ..o. ..,_-.,.. _...._ - .. 
The record does not indicate - -that the petitioner continues to perform similar research activities in a university setting in the United 
States so as to demonstrate any potential future contribution in this area. Regardless, there is no 
evidence demonstrating that the petitioner's published findings have ever been implemented by 
others in the field, have been frequently cited by independent scholars, or have otherwise influenced 
the field of education as a whole. 
The petitioner also submitted President George H.W. Bush's "Remarks on Signing the Immigration 
Act of 1990"; a copy of Section 1119 of the No Child Left Behind Act (NCLBA); "Barack Obama 
on Education" questions and answers posted at www .ontheissues.org; a statement by U.S. Secretary 
of Education Arne Duncan on the National Assessment of Educational Progress Reading and Math 
2011 Results; an article in the Wall Street Journal entitled "The Importance of Math & Science in 
Education"; an article in Computer Science Technology entitled "Importance of Science and Math 
Education"; information about STEM (science, technology, engineering and mathematics) fields 
printed from the online encyclopedia Wikipedia; an article entitled "STEM Sell: Are Math and 
Science Really More Important Than Other Subjects?"; 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) ; 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 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 teacher has influenced the field as a 
whole. 
The director denied the petition on June 28, 2013. The director indicated that the petitioner had not 
shown that the proposed benefits of her work as a teacher will be national in scope. The director also 
determined that the petitioner had not demonstrated that her work has had an impact beyond the 
institutions where she has studied and worked, or that the petitioner's work has otherwise influenced the 
field as a whole. The director therefore concluded 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. 
On appeal, counsel asserts that "USCIS erred in giving insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 [NCLBA] as the guiding 
principle rather than the precedent case" NYSDOT. With regard to following the guidelines set forth 
in NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 
8 C.F.R. § 103.3(c). 
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Counsel argues 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 [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 education sector." 
Counsel does not support the assertion that the NCLBA modified or superseded NYSDOT and 
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 to 
counsel's claims regarding the NCLBA, 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. Congress not only can 
amend the Act to clarify the waiver provisions, but has in fact done so in direct response to 
NYSDOT. Counsel, however, 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) provides in relevant part that: 
"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 ... 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 "Congress legislated [NCLBA] to serve as guidance to USCIS in granting legal 
residence to 'Highly Qualified Teachers'" and that the labor certificationprocess poses a "dilemma" 
for the petitioner because she possesses qualifications that "could not be articulated in conformity 
with the process regulations." Section 9101(23) of the NCLBA defines the term "Highly Qualified 
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Teacher." Briefly, by the statutory definition, a "Highly Qualified" middle or secondary school 
teacher who is new to the profession: 
• 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 
• has demonstrated a high level of competency in each of the academic subjects in which 
the teacher teaches by - passing a rigorous State academic subject test in each of the 
academic subjects in which the teacher teaches; or successful completion, in each of the 
academic subjects in which the teacher teaches, of an academic major, a graduate degree, 
coursework equivalent to an undergraduate academic major, or advanced certification or 
credentialing. 
In addition, the U.S. Department of Labor's Occupational Outlook Handbook, 2014-15 Edition, 
describes the minimum qualifications necessary to become a middle school teacher: 
Middle school teachers must have a bachelor's degree. In addition, public school teachers 
must have a state-issued certification or license. 
Education 
All states require public middle school teachers to have at least a bachelor's degree. Many 
states require middle school teachers to major in a content area, such as math or science. 
Other states require middle school teachers to major in elementary education. 
* * * 
Some states require middle school teachers to earn a master's degree after receiving their 
teaching certification. 
Licenses, Ce1tifications, and Registrations 
All states require teachers in public schools to be licensed, or certified. 
* * * 
Certification of middle school teachers varies considerably from state to state. In some states, 
they are certified to teach elementary school grades, which are typically first through sixth 
grades or first through eighth grades. In other states, they are certified to teach middle school 
grades, which include sixth through eighth grades. Still other states provide middle school 
teachers with a secondary school or high school certification, which often includes seventh 
through twelfth grades. 
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Requirements for certification also vary by state. However, all states require teachers to have 
at least a bachelor's degree. They also require completing a teacher preparation program and 
supervised experience in teaching, which is typically gained through student teaching. Some 
states require a minimum grade point average. States typically require candidates to pass a 
general teaching certification test, as well as a test that demonstrates their knowledge of the 
subject they will teach. For information on certification requirements in your state, visit 
Teach.org . 
Teachers are often required to complete annual professional development classes to keep 
their license. Most states require teachers to pass a background check, and some states 
require teachers to complete a master's degree after receiving their certification. 
All states offer an alternative route to cettification for people who already have a bachelor's 
degree but lack the education courses required for certification. Some alternative certification 
programs allow candidates to begin teaching immediately after graduation, under the 
supervision of an experienced teacher. These programs cover teaching methods and child 
development. After they complete the program, candidates are awarded full certification. 
See http://www.bls.gov/ooh/cducation-training-and -library/middlc-school-tcacher s.htm#tab-4, from 
February 6, 2014, copy incorporated into the record of proceeding . The petitioner has not 
established that the NCLBA's "Highly Qualified" standard involves requirements that are more 
stringent than those outlined in the Occupational Outlook Handbook, or that a public school could 
not obtain a labor cettification for a "highly qualified teacher." The labor certification process 
outlines the minimum requirements for a job opportunity. It does not preclude the employer from 
hiring applicants that exceed the minimum qualifications for the position. Thus, the petitioner's 
specific qualifications and experience are not required for "highly qualified" status under the 
NCLBA. Regardless, 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.S. 
Counsel quotes remarks made by then-President George H.W. Bush when he signed the Immigration 
Act of 1990, which created the national interest waiver: "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 interprets this passage to mean that Congress created the national 
interest waiver for "highly qualified" educators. The Immigration Act of 1990, however, was not 
restricted to the creation of the waiver. It was, rather, an overhaul of the entire immigration 
structure, creating new employment-based immigrant classifications to replace the "third preference" 
and "sixth preference" classifications previously in place. "[S]cientists and engineers and educators" 
are all members of the professions who, under the terms dictated by Congress in the Immigration 
Act of 1990 (as it amended the Act), are all subject to the job offer requirement. 
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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 petitioner, however, has failed to establish that her 
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 states that the Maryland School Assessment (MSA) is "the [NCLBA]-designated metric to 
determine whether the law's goals are being met" in the state of Maryland. In addition, counsel 
contends that closing the achievement gap "resonates with as it is a high-poverty and high­
minority school district." Although the etitioner has worked for s.ince 2009, the petitioner 
failed to submit MSA test results for demonstrating 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 at 534, n.2; 
Matter of Laureano at 3, n.2; Matter of Ramirez-Sanchez at 506. In addition, while counsel asserts that 
the petitioner has "proven success in raising proficiency of her 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 the schools where she has taught. 
Counsel states that the "director erred in his appreciation of the petitioner's past achievement" and 
points to the petitioner's award certificates and published articles. As previously discussed, the 
petitioner's awards and publications do not show that her work has had a wider impact on the field 
of science education, or that her work has otherwise influenced the field as a whole. 
Counsel asserts 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 educator. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Counsel contends that "the Immigration Service is requiring more from the beneficiary's credentials 
[] tantamount to having exceptional ability." However, an individual is not required to qualify as an 
alien of exceptional ability in order to receive the national interest waiver. As previously discussed, 
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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 determined that the petitioner had "not established that a waiver of the job offer 
and labor certification requirement will be in the national interest of the United States." 
Counsel states 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 efforts, 
after several years in the United States, have set her apart from other educators with regard to raising 
student achievement in or nationally. 
Counsel acknowledges that the labor certification requirement exists to protect United States 
workers. Counsel contends that a waiver of that requirement would serve the same ultimate goal, by 
allowing highly qualified foreign teachers such as the petitioner to make "present school children 
more competitive in the job market by providing them the highest quality of education as possible." 
Citing the TFA study, counsel asserts that "U.S. workers in the teaching industry are not as 
competitive in the job market as . . . their foreign counterparts who have advanced degree or 
equivalent and fully certified [sic]." 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 does not explain how a study on a small subset of entry-level teachers is 
relevant to the competitiveness of U.S. teachers in general. Regardless, counsel essentially contends 
that highly qualified "foreign" teachers, as a class, are eligible for a blanket waiver of the job offer 
requirement. However, 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 contends that a waiver would ultimately serve the interests of United States teachers, 
because if schools "fail to meet the high standard required under the [NCLBA]," the result would be 
"not only ... closure of these schools but [also] loss of work for those working in those schools." 
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. In addition, counsel asserts 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. As previously 
discussed, there are no blanket waivers for highly qualified foreign teachers; USCIS grants national 
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interest waivers on a case-by-case basis, rather than establishing blanket waivers for entire fields of 
specialization. NYSDOT at 217. 
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 sufficient to waive 
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.