dismissed EB-2 NIW Case: Education

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
JiVntyCCOpy 
U.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER DateMAR 09 2011 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member ofthe 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 in your case, All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 c'F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(\)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a math tutor and teacher. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien 
employment 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 had not established that an exemption from the requirement of a job offer would be 
in the national interest of the United States. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
withdraw the director's conclusion that the petitioner, seeking to work in the United States as a tutor, 
may be classified as a member of the professions as defined at 8 C.F.R. § 204.5(k)(2). Similarly, the 
petitioner does not qualify for the classification sought as an alien of exceptional ability. Regardless, 
we concur with the director's ultimate conclusion that the petitioner has not established her eligibility 
for the benefit sought. Specifically, the petitioner's work as a tutor provides benefits that are too 
attenuated at the national level and has no prior experience, let alone a track record of success, 
developing and overseeing curricula for a national chain of learning centers. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afJ'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Section 203(b) of the Act states in pertinent part that: 
(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. 
Page 3 
(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. 
Classification as a Member of the Professions or an Alien of Exceptional Ability 
The petitioner submitted diplomas and transcripts documenting the following education: 
I. A Bachelor of Elementary Education from Andres Soriano Memorial College in 
the Philippines in March 2000, 
2. A Master of Business Administration (MBA) from De la Salle University in the 
Philippines in April 1995, 
3. Eighteen credits towards a Master in Applied Statistics from the Graduate 
School of Polytechnic University of the Philippines in 1989, and 
4. A Bachelor of Science in Mathematics for Teachers from the Philippine Normal 
College in April 1981. 
The evaluation of the petitioner's foreign education only addresses the petitioner's Bachelor in 
Elementary Education and MBA. Moreover, the evaluation indicates that the petitioner received her 
Bachelor in Elementary Education in 1990, not 2000 as indicated on the transcript. The evaluation 
concludes that the petitioner has the foreign equivalent of a U.S. Bachelor of Education and a U.S. 
MBA. The director concluded that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree. We acknowledge that the petitioner has an advanced degree. 
Moreover, she claims prior employment as a school teacher, an occupation expressly defined as a 
profession by statute. Section 101(a)(32) of the Act. At issue, however, is whether the proposed 
employment falls within a profession. Specifically, being a member of the professions does not entitle 
the petitioner to classification as a professional if she does not seek to continue working in that 
profession. See Matter a/Shah, 17 I&N Dec. 244, 246-47 (Reg'!. Comm'r. 1977). 
The petitioner did not complete part 6 ofthe petition regarding the proposed employment. In his cover 
letter, counsel explains how the petitioner's work as a tutor will benefit the national interest but then 
lists a job description that is limited to teaching at a schoo!. The petitioner cannot claim a school 
teacher occupation to qualifY as a professional and simultaneously claim to benefit the national interest 
as a tutor. The petitioner has worked as a tutor since 2006 and all of the initial evidence relating to the 
national interest indicates that she intends to continue We ac'~o·wJI~d~~e 
Page 4 
petitioner will design and oversee curricula at future "learning centers" or "schools" nationwide Mr. 
_intends to open. 
As defined at Section IOl(a)(32) of the act, profession "shall include but not be limited to architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as follows: 
[O]ne of the occupations listed in section IOl(a)(32) of the Act, as well as any 
occupation for which a United States baccalaureate deb'!'ee or its foreign equivalent is 
the minimum requirement for entry into the occupation. 
As stated above, the petitioner has not established that she intends to return to working as an 
elementary or secondary school teacher. Rather, the initial filing suggested that the petitioner intended 
to work as an online and personal tutor. of Operations for 
asserts that the company's Tutorial Channel tutors must possess an advanced degree. 
does not suggest that an advanced degree is the minimum requirement for entry into the occupation of 
math tutor. The petitioner failed to submit evidence that a bachelor's degree is the minimum 
requirement for entry into the tutoring occupation. Thus, the petitioner has not established that she 
qualifies as a member of the professions. 
As the petitioner has not demonstrated that she qualifies as a member of the professions, the next 
question is whether she qualifies as an alien of exceptional ability. The regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an alien must meet in 
order to qualify as an alien of exceptional ability in the sciences, the arts, or business: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability 
(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
Page 5 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
If a petitioner has submitted the requisite evidence, U. S. Citizenship and Immigration Services 
(USerS) determines whether the evidence demonstrates "a degree of expertise significantly above 
that ordinarily encountered" in the arts. 8 C.F.R. § 204.5(k)(2). Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 20 I 0), sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. While involving a different classification 
than the one at issue in this matter, the similarity of the two classifications makes the court's 
reasoning persuasive to the classification sought in this matter. 
An official academic record showing that the alien has a degree, diploma, certificate, or similar 
award from a college, university, school, or other institution of learning relating to the area of 
exceptional ability 
As discussed above, the petitioner possesses two baccalaureates and an MBA. Thus, she has 
submitted qualitying evidence that meets the plain language requirements set forth at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) 
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at 
least ten years of full-time experience in the occupation for which he or she is being sought 
Counsel initially asserted that the petitioner "has at least ten years of full-time experience in the field 
of math education." The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. I, 3 n.2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, the regulation at 
8 C.F.R. § 204.5(k)(3)(ii)(B) explicitly requires evidence of letters from current or former employees 
to document the petitioner's experience. The petitioner failed to submit letters from her former 
employers confirming at least ten years of full-time experience. Thus, she has not submitted 
qualitying evidence that meets the plain language requirements set forth at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
A license to practice the profession or certification for a particular profession or occupation 
The petitioner submitted her provisional Public School Teacher Certificate. The certificate expired 
August 31, 2009, after the petitioner filed the petition. Nevertheless, the petitioner submitted 
qualitying evidence that meets the plain language requirements of the regulation at 8 C.F .R. 
§ 204.5(k)(3)(ii)(C). 
Page 6 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability 
The petitioner provided no evidence relating to the regulation at 8 C.F.R. § 204.S(k)(3)(ii)(D). 
Evidence of membership in professional associations 
The petitioner submitted a 2002 certificate of membership in the National Organization of 
Professional Teachers, Inc. Thus, the petitioner has submitted qualifying evidence that meets the 
plain language requirements of the regulation at 8 C.F.R. § 204.S(k)(3)(ii)(E). 
Evidence of recognition for achievements and significant contributions to the industry or field by 
peers, governmental entities, or professional or business organizations 
The petitioner provided no evidence relating to the regulation at 8 C.F.R. § 204.S(k)(3)(ii)(F). 
In light of the above, the petitioner has submitted evidence that qualifies under three of the 
evidentiary criteria. Thus, we must next conduct a final merits determination that considers all of the 
evidence in the context of whether or not the petitioner has demonstrated that the beneficiary has "a 
degree of expertise significantly above that ordinarily encountered." 8 C.F.R. § 204.S(k)(2). Section 
203(b )(2)(C) of the Act provides that the possession of a degree, diploma, certificate or similar 
award from a college, university school or other institution of learning or a license to practice or 
certification for a particular profession or occupation shall not by itself be considered sufficient 
evidence of exceptional ability. Thus, in our final merits determination, we must determine whether 
the beneficiary's degree or license is indicative of or consistent with a degree of expertise 
significantly above that ordinarily encountered. 
The petitioner's provisional license and membership in a professional teaching association do not 
distinguish her from other elementary or middle school teachers. At issue, however, is whether the 
beneficiary's license and education demonstrate a degree of expertise significantly above that ordinarily 
encountered among paid math tutors. I While a baccalaureate may not be required for entry into the 
occupation as a tutor, that does not necessarily mean that it is significantly above the education 
ordinarily encountered among paid math tutors. The record does not establish the percentage of paid 
math tutors with a baccalaureate. While the petitioner also possesses an MBA, the petitioner has not 
documented the relevance of an MBA to math tutoring such that possession of such a degree 
demonstrates exceptional ability as a math tutor. The petitioner has also not demonstrated that a 
provisional teaching license and a professional membership in an association with undocumented 
I As the petitioner seeks an employment-based visa and intends to work as a paid math tutor, it is appropriate 
to compare her with other paid math tutors rather than including every volunteer who provides minimal 
tutoring on a limited, part-time basis. 
Page 7 
membership requirements are indicative of or consistent with a degree of expertise significantly above 
that ordinarily encountered among paid math tutors. 
In light of the above, the petitioner has not established her eligibility for the classification sought. 
Nevertheless, we will next consider whether she has established that waiving the alien employment 
certification process would be in the national interest. 
National Interest 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest 
by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), 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. 
Matter of New York Siale Dep't. ofTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the 
waiver must establish that the alien will serve the national interest to a substantially greater degree than 
would an available U.S. worker having the same minimum qualifications. Id. at 217-18. 
It must be noted that, 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. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. We include the term 
"prospective" to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. Id. 
The petitioner submitted considerable evidence about the importance of math instruction in the 
United States. The petitioner submits more evidence addressing the substantial intrinsic merit of the 
petitioner's area of work. The director, however, agreed that the petitioner works in an area of 
substantial intrinsic merit, math instruction, and we concur with that determination. The petitioner, 
however, cannot establish eligibility solely by a showing that the petitioner's field of endeavor has 
intrinsic merit or that the petitioner's occupation is important. ld. at 217. 
Next we consider whether the proposed benefits of the petitioner's work, improved math abilities 
among the petitioner's students, would be national in scope. The director concluded that the 
proposed benefits would be limited to the petitioner's students and, thus, would not be national in 
scope. On appeal, counsel reiterates that the petitioner tutors students residing in various states 
online. 
NYSDOT, 22 I&N Dec. at 217, n.3, provides the following examples to illustrate the proper analysis 
of whether an occupation has a national scope: 
ld. 
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. 
Initially, counsel asserted that the petitioner tutors students individually, in small groups and online. 
Counsel lists the . 
confirms that the petitioner is one of the company's 
tutors as part Channel. In addition, in his initial letter, _ 
affirms that he is collaborating with the petitioner on books for teachers and students on logic 
and critical thinking and "developing a new curriculum" on these subjects. 
Page 9 
On appeal,_sserts that one of his other companies, "is 
planning to open innovative learning centers across the United States next two to years" 
with the "first of these schools tentatively scheduled to open for the 2010-2011 school year." _ 
_ asserts that the petitioner will at some point, plan and coordinate educational policies and 
oversee this nationwide program.1iiiIIiiiIiiii did not indicate in his previous letter that the petitioner 
would be involved in overseeing a nationwide system of learning systems. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See 8 C.F.R. § 103.2(b)(l2); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'\. Comm'r. 1971). Therefore, a petitioner may not make material 
changes to a petition that has already been filed in an effort to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). 
Moreover, the record does not establish that Pa~ Corporation already operates any type of 
nationwide system of learning centers.2 Thus,_ claims regarding the petitioner's possible 
future position appear far too speculative to consider. 
We acknowledge that as an online tutor, the petitioner tutors individuals who do not reside locally. 
As noted above, the petitioner tutors for several organizations, only one of which claims to provide 
online tutoring services for non-local students. Tutoring a small number of non-local students has 
such a diluted impact at the national level as to be negligible. Thus, we are not persuaded that the 
benefits of an online tutor are national in scope. 
As stated above, _ asserted initially that the petitioner was collaborating with him on 
curricula that cou~emented nationwide. The record does not establish that _ 
operates a company that is already known for providing curricula to different jurisdictions. Thus, 
once again, his projections about the future appear far too speculative. 
Even' about what the petitioner will do in the future are not too speculative, we 
whether the petitioner will benefit the national interest to a greater extent than 
an available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualifY for a national interest waiver. In 
addition, "exceptional ability" is not, by itself sufficient cause for a national interest waiver. Jd at 
218. Thus, the benefit which the alien presents to her field of endeavor must greatly exceed the 
"achievements and significant contributions" contemplated for that classification. Id; see also id. at 
222. At issue is whether this petitioner'S contributions in the field are of such unusual significance 
2 The New York Department of 
record of proceedings), reflects that 
January 25, 2011. 
Corporations, indicates on their website, 
March 1, 2011 and incorporated into the 
is inactive based on a dissolution as of 
Page 10 
that the petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification she seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. 
asserts that the petitioner has 
~onfirms that the 
petitioner demonstrated professionalism and was "a very math teacher working the most 
resistant students." Counsel has cited no legal authority for the proposition that the national interest 
waiver was intended as a blanket waiver for professional and effective math teachers or tutors. 
the benefits of online tutoring, asserting that it is ~ than private 
in-home tutors and offers a roster of tutors from which students can choose. _continues: 
Every Tutorial Channel math tutor has passed a rigorous selection process and has an 
advanced degree and specialized training in math. In addition to extensive subject 
knowledge, they must be caring, pleasant and patient as well as experts in 
communicating complex math concepts in simple terms. 
statement cannot be read to mean that Tutorial Channel requires an advanced degree in 
math as the petitioner's advanced degree is an MBA. Regardless, the petitioner's qualifications to work 
as a Tutorial Channel math tutor does not justifY a waiver of the alien employment certification process. 
As stated in NYSDOT, 22 I&N Dec. at 221, it cannot suffice to state that the alien possesses useful 
skills, or a "unique background." Special or unusual knowledge or training, while perhaps attractive to 
~e U.S. employer, does not inherently meet the national interest threshold. Id. Finally, 
_ confirms that the petitioner has "been helping her students get higher grades, build their 
confidence and increase their self-esteem and the parents of these students can attest to the outstanding 
results." This statement does not explain how the petitioner, an effective tutor, has influenced the field 
of math tutoring. 
_ asserts that he and the petitioner "have collaborated on a number of projects related to 
education." He further states that he and the petitioner "are currently working on writing books on logic 
and critical thinking for teachers and students at all levels ~tional activities customized for 
students with different ages, experiences and abilities." _ does not indicate whether a 
publisher exists for these books, whether any school jurisdiction has expressed an interest in these 
books or whether the petitioner has any prior experience authoring such books. _concludes: 
Recognizing the importance of developing applied thinking skills in our students, my 
team, which includes [the petitioner], thought about developing a unique curriculum 
that encourages critical thinking and problem-solving. So far, it has shown extremely 
positive results. The students are learning successfully as confirmed by the higher 
scores that they are getting in standardized tests compared to their peers. At present, we 
Page 11 
have started to introduce this curriculum throughout the United States. We are 
confident that this curriculum, if adopted nationwide, will not only boost the scores of 
students in standardized tests but most important of all, it will produce students who 
will think critically and creatively. Hopefully, these students will develop a love of 
lifelong learning. 
_does not explain where his team's curriculum has been utilized or who determined that it 
produced results. The record contains no evidence that this curriculum has garnered any attention in 
the trade media or other attention in the tutoring community beyond the petitioner's own circle of 
colleagues and collaborators. 
On appeal, _ discusses his plan to open schools in five cities where students perform below 
the international average. He asserts that the petitioner "has been involved with the project since its 
inception" and that she will eventually be the "Director of Operations." While _praises the 
petitioner's skills in moving this project forward, he does not suggest that the petitioner has any prior 
experience in this area. As such, the petitioner has not demonstrated that she has a track record of 
success with some degree of influence on the field as a whole. 
Ultimately, the petitioner is seeking a waiver of the alien employment certification process to engage in 
minimal online tutoring services and develop and oversee nationwide curricula without any prior 
history of having done so. A single tutor's benefits are too attenuated at the national level to warrant a 
waiver of the alien employment certification process. Moreover, the petitioner has no track record in 
developing and overseeing national curricula such that we can determine that it is likely the petitioner 
will benefit the national interest through such activities. 
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 alien employment certification will be in 
the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.