dismissed EB-2 NIW Case: Education

(b)(6)
DATE: NOV 0 4 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b )(2) 
ON BEHALF 
OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrativ e 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 revl~w the Form I-290B instructions at 
http: //www.uscis.gov /forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~tt.~herg Chi~~~~:runistrative Appeals OWce 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a dual language immersion teacher and research assistant at 
in the 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 legal brief, asserting that the director "has applied an incorrect test 
for determining the national interest." 
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 director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its 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). 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In re New York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. Id. 
The regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed Form I-140, Immigrant Petition for Alien Worker, on January 30, 2012. On an 
accompanying Form ETA 750B, Statement of Qualifications of Alien, the petitioner described her 
duties with 
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Prepare lesson plans tailed [sic] to the learning patterns of students in the English as a 
Second Language program; Engage in instruction with regard to English linguistics 
such as syntax, phonology, semantics and pragmatics; Recognize and emply [sic] 
effective strategies for increasing communicative competence in English through the 
use of visuals and speech to make language comprehensible to the student; Prepare 
materialsand [sic] demonstrate strategies to help students transition from the use of 
social language to more formal vocabulary; identify culturally responsive instruction. 
An introductory statement indicated: 
[The petitioner's] nearly decade-long career as a Dual Language Immersion Instructor 
conclusively demonstrate [sic] that she is already serving the United States' national 
interest to a significantly greater extent than other educators in the field .... 
[The petitioner's] services in dual language immersion instruction are critically 
important on a national level, and particularly in a state such as Texas, where the rate 
of English Language Learners (ELLs) continues to grow .... 
. . . [The petitioner's] highly valuable services as an educator within Dual Language 
Immersion programs produces superior test results in comparison to English-only 
classrooms, and traditional "bilingual classrooms." ... Based on the established, 
higher test scores of students participating in traditional bilingual as well as Dual 
Language Immersion programs, the services of bilingual instructors, such as [the 
petitioner], are invaluable in states with high levels of English Language learners, 
such as Texas, California, New York, and Florida. 
The above assertions concern the intrinsic merit of dual language immersion programs; they do not 
establish that the benefit from the work of one such instructor is national in scope. Also, apart from 
establishing the significance of the occupation, the petitioner must establish how she, individually, 
qualifies for an exemption from the job offer requirement that normally applies to professionals such 
as her. The petitioner stated: 
_ where [the petitioner] is employed, will be 
implementing this program on a larger scale in the next school year. The program 
will be monitored and studied not only by the district's researchers, but also in 
cooperation with local university researchers. [The petitioner's] experience in the 
field will play a crucial and pivotal role in the success of the program and the 
development of study methods and measures. She will be able to assist the school 
and the researchers in identifying the areas of practice that are key for measurement 
while keeping the goals of the program intact for the learners. 
The petitioner contended that "the supporting 
evidence amply confirms [the petitioner's] status as a 
critical and seminal figure in the field of Dual Language Immersion education," as well as "a key 
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figure substantially contributing to the development of the Dual Language Immersion pedagogyn 
[sic]." Some of the supporting evidence consists of the petitioner's basic credentials, such as 
academic degrees and certifications. Those materials show that the petitioner is qualified to teach, 
but do not establish her claimed standing in the field. 
The petitioner also submitted an article by 
published in the Winter issue of the 
_ The authors summarized their "research findings of the past 18 
years," using data from "15 different states." The study attests to the merits of the dual language 
model, while making it clear that this model has been in use for "decades." A printout from the web 
site of the identified 392 "Two-Way Bilingual Immersion Programs 
in the U.S." The list does not name or any school in 
The petitioner submitted letters signed by two former teachers, both of whom focused on the overall 
importance of the petitioner's field, rather than the petitioner's individual qualifications or 
achievements in that field. a former dual immersion teacher in 
California, is now a senior educational sales representative for which sells 
"educational materials." Ms. discussed the benefits of dual language education, and 
asserted: "acquiring a second langue [sic] requires a qualified bilingual educator." Ms. 
asserted that the petitioner "is exceptionally well-qualified to provide services in the field of 
bilingual education based on her formal college education, and her eight years of service as an 
educator in the United States." 
a former bilingual educator for the did not 
identify her current occupation (her resume, in the record, stops at 2005). Ms. stated that the 
petitioner "is exceptionally, [sic] well-qualified to provide services in the field of bilingual education 
based on her formal college education ... , and her collective eight years of service as an educator in 
the United States." She asserted: "I am in a position to appreciate [the petitioner's] accomplishments 
as well as her impact on the education and future potential of our students," but she did not describe 
those accomplishments or that impact. Ms. did not indicate that the petitioner is contributing 
to the development of a new method of teaching language. Rather, she stated: "Dual Language 
Immersion programs continue to expand throughout the United States." She further asserted: 
"acquiring a second langue [sic] requires a qualified bilingual educator." 
The petitioner's initial evidence, described above, indicates that the petitioner is qualified to work in 
her chosen field,. but does not support counsel's claim that the petitioner has earned "status as a 
critical and seminal figure in the field of Dual Language Immersion education." 
The director issued a request for evidence on March 19, 2012, instructing the petitioner to "submit 
evidence that the [petitioner's] contributions will impart national-level benefits," and to "establish 
that the [petitioner] has a past record of specific prior achievement with some degree of influence on 
the field as a whole." In response, the petitioner observed that, given the nature of her work, she 
would not influence her field through patents, copyrights, or published articles, but rather: 
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(The petitioner] serves as a vital link between researchers on curriculum development 
and the development of this educational pedagogy. Both [the petitioner's] experience 
and her multi-lingual background have made her exceptionally valuable to the 
development of this pedagogy. Her position as the tester and reporter of 
methodologies and her district's quality reputation in the field allow her to have a 
national degree of influence on the field as a whole. 
In order to demonstrate this claimed influence, the petitioner submitted five additional letters, all 
from current or former staff members at Former principal now 
principal of . stated: 
[The petitioner's] work has proven to be extremely valuable in the development of an 
effective and results driven program that has benefitted children here and across the 
United States . 
. 
. . [The petitioner's] Math and Science classes have produced the highest scores in 
the district. This is very promising, as her classes are the first to utilize the Dual 
Immersion Program, which she helped to establish. The district has taken her success 
and modeled other programs in the district with her input and direction. In addition, 
researchers from the local universities have studied the program and use it as part of 
their research in how to establish an effective program for second language programs. 
The success of the program is also the topic of discussion when district 
representatives present at conventions or collaborate with other school districts across 
the country that are struggling with establishing such programs .... Other school 
districts across the country take from these presentations and discussions and utilize 
[the petitioner's] novel methods and approaches in their schools. As such, [the 
petitioner] has had a profound effect upon the establishment of Dual Immersion as an 
educational pedagogy. 
Mr. did not identify the "other school districts," and he did not indicate that the petitioner 
herself is developing the program. Rather, the following description suggests that the petitioner is 
field testing the program, under the direction of researchers: 
[The petitioner] works with both researchers and school officials in identifying what 
works in these programs and why. She is able to test theories in the field and make 
reports back that allow the program to be changed as necessary. No scholarly 
research would be complete without the contributions of instructors who can also 
serve as research assistants to researchers like [the petitioner]. In addition, her work 
is copied by the other school districts when the look at our programs as our program 
is based on her successes. 
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Being among the first teachers to test a new program is not a contribution comparable to actually 
developing the program. Further, the record does not show that the petitioner herself has made 
modifications to the program, but rather has reported issues that lead others to make those 
modifications. An alien's job-related training in a new method, whatever its importance, cannot be 
considered to be an achievement or contribution comparable to the innovation of that new method. 
See NYSDOT, 22 I&N Dec. at 221 n.7. 
principal of stated that the petitioner's "years of experience and unique 
multi-lingual background allow her to make unique and effective contributions to curriculum 
development," and that "her work has significant influence in academic as well as scholarly circles." 
bilingual reading specialist at stated that the petitioner's "work . 
. . is 
often copied by other school districts. In addition, her methods . . . serve as the basis for the 
presentations that our Administration makes at educational conferences." Ms. claimed that 
"[t]he District . . . suffers from a shortage of certified bilingual teachers," but nevertheless 
contended: "making the District recruit for her position would most likely result [in] a lesser 
qualified candidate." A claimed worker shortage does not warrant the national interest waiver; 
because the labor certification process is already in place to address such shortages. See NYSDOT, 
22 I&N Dec. at 218. 
Owing to subsequent events, the situation Ms. described is no longer hypothetical. USCIS 
records show that successfully obtained a labor certification on the petitioner's behalf, and 
used it as the basis for a new petition seeking to classify the petitioner as a professional under section 
203(b)(3)(A)(ii) of the Act. The director approved the petition on August 7, 2014, with a priority date 
of November 18, 2013. Thus, the petitioner in this proceeding is 
the beneficiary of an approved 
immigrant petition, and was not displaced by the recruitment process that led to labor certification. 
Because it is now a demonstrable fact that labor certification did not displace the petitioner, hypothetical 
assertions to the contrary have no weight in this proceeding. 
a counselor at asserted that had "problems ... with recruiting enough 
qualified, culturally sensitive, and scholarly inclined teachers." As noted above, a local shortage of 
qualified workers would tend to support approval of a labor certification, as has proven to be the case 
here. Like Mr. quoted above, Ms. did not indicate that the petitioner developed 
experimental dual language program. Rather," selected only a few schools as 'test' sites for 
the implementation of Dual Language programs." Ms. credited "teachers like [the petitioner]" for 
the success of the program, but did not specify how the petitioner actively shaped that program (as 
opposed to critiquing and commenting on the program after testing it in the classroom). 
a curriculum specialist at did not indicate that the petitioner had created or 
developed dual language program. Rather, she stated: "The development of these bilingual 
programs could not move forward without teachers like [the petitioner], who can test theories and 
models in the field and still have the scholarly understanding of how to track, measure, and assess the 
effectiveness of new approaches." 
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The writers of the above letters praised the petitioner's contributions, but did not identify or describe 
those contributions. Because all of the letters are from , they are not first-hand evidence of the 
application of the petitioner's work outside of that district. The general claim that "other school 
districts" use the results of the petitioner's work does not establish the national scope or influence of 
the petitioner's work. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comrn'r 1972)). 
The director denied the petition on January 16, 2014, stating: "The [petitioner's] national interest 
waiver request hinges on the assertion that her contributions to the dual language 
immersion program will be widespread nationally." The director quoted some of the submitted 
letters, and concluded: "nothing in the record establishes that any schools outside of 
have benefitted from [the petitioner's] work." 
The petitioner's legal brief on appeal does not, for the most part, discuss the specifics of the petition. 
Instead, the petitioner relies on the argument that the director "applied an incorrect test for 
determining the national interest." The petitioner notes that section 203(b)(2)(A) of the Act refers to 
members of the professions holding advanced degrees "or" aliens of exceptional ability, and asserts 
that the conjunction "or" creates a meaningful distinction between the two classifications. 
The petitioner asserts that, because "both the statute and the regulations make it clear that [alien of 
exceptional ability and member of the professions holding an advanced degree] are distinct 
classifications that address very different situations. There is not a scintilla of indicia that suggests 
the national interest standard for these two classifications is or should be the same." The petitioner, 
however, has not established that there should be any presumption that the national interest standard 
should be different for the two classifications. 
The petitioner's argument rests, in part, on the wording of the regulation at 8 C.P.R. 
§ 204.5(k)(4)(ii), which "clearly refers only to 'exceptional ability' while purposefully omitting 
references to aliens who are members of the professions holding advance[d] degrees." The 
petitioner asserts that this omission "demonstrates that treating these distinctive categories as one is 
not proper." The petitioner also claims: "By clearly omitting members of the professions holding 
advanced degrees or their equivalent from the proposed rules and comment period, while having full 
knowledge of this omission, violates the rule making procedures of the APA [Administrative 
Procedures Act]." 
That regulation, as the petitioner acknowledges, was promulgated in 56 Fed. Reg. 60897 (Nov. 29, 
1991). At that time, section 203(b)(2)(B) of the Act made the waiver available only to foreign 
workers "in the sciences, arts, or business." The statute included no provision to waive the job offer 
requirement for members of the professions. Therefore, the cited regulation reflects the statute as it 
existed at the time. The notice and comment requirements of the AP A did not grant the Immigration 
and Naturalization Service (INS) the authority to expand the availability of the waiver on its own. 
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The regulation did not reflect any conscious effort to create or imply separate national interest 
standards for the two classifications; rather, it accurately reflected that the law allowed the waiver 
only for one of the two classifications. 
After the promulgation of the above regulation, the Miscellaneous and Technical Immigration and 
Naturalization Amendments of 1991 (MTINA), Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991), 
amended section 203(b)(2)(B) of the Act by inserting the word "professions" after the word "arts," and 
thereby made the national interest waiver available to members of the professions holding advanced 
degrees. MTINA made no further modifications to the national interest waiver clause. 
In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, 113 
Stat. 1312 (Nov. 12, 1999), amended the Act by adding section 203(b)(2)(B)(ii) to create special 
waiver provisions for certain physicians. Separate regulations exist for those physicians at 8 C.F.R. 
§ 204.12. Thus, those physicians are subject to different waiver provisions, but only because Congress 
specified those provisions through legislation. 
The petitioner asserts that members of the professions holding advanced degrees are entitled to a 
different, presumably lower, threshold for the national interest waiver, but the petitioner cites no 
authority to establish that threshold. NYSDOT makes no distinction between the two classifications, 
because there is no statutory or regulatory justification for such a distinction. 
In 1995, INS published a proposed rule that would have included new regulations relating to the 
national interest waiver. See 60 Fed. Reg. 29771 (June 6, 1995). The petitioner submits public 
comments on that proposed rule, submitted by the American Immigration Lawyers Association. The 
proposed rule was never finalized, and public comments on proposed rules are not policy 
instruments of the United States government; the comments are not binding on USCIS employees. 
As a precedent decision, however, NYSDOT is binding on them. See 8 C.F.R. § 103.3(c). NYSDOT, 
in turn, has survived court challenges. See, e.g., Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL 
767018 (S.D.N.Y. July 9, 2001). Therefore, NYSDOT remains binding precedent, and the director 
had no discretion to disregard NYSDOT in rendering the decision. 
The petitioner states: "We believe that the work done by the in developing an educational 
pedagogy is not only important to the nation, but that it has a national widespread effect despite its 
immediate local nature. We believe that the standard should not focus on whether the job is 
conducted locally, but whether that local work contributes to a national interest." 
Section 203(b )(2)(B)(i) of the Act permits immigration authorities to waive the job offer requirement 
when that waiver is "in the national interest." This is not the same as finding that a given foreign 
worker's "local work contributes to a national interest." Arguably, every worker in a useful 
occupation contributes to a national interest to some extent, however small. The threshold proposed 
on appeal would limit the statutory job offer requirement to workers in occupations that provide no 
benefit to the United States. 
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Furthermore, as discussed above, the petitioner has not established that she has played a significant 
role "in developing an educational pedagogy" that "has a national widespread effect." The petitioner 
has asserted that other schools have adopted the methods thus developed, but has not identified any 
such school or rovided corroboration from those schools. Unsupported assertions from the 
petitioner and staff members cannot meet the petitioner's burden of proof in this regard. See 
Matter of Soffici, 22 I&N Dec. at 165. 
Furthermore, the record indicates that the petitioner is among an unknown number of teachers who 
are testing methods developed elsewhere, and reporting on their effectiveness so that the researchers 
developing the methods are able to improve upon them. The petitioner has not shown that this field 
testing amounts to "developing an educational pedagogy." 
The petitioner has not established a 
past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.