dismissed EB-2 NIW Case: Education

(b)(6)
DATE: 
JUN 1 0 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE 
CENTER 
U.S. Department of Homeland Security 
U.S. Citizen ship and Immigrati on Service : 
Administrative Appeals Office (AAO) 
20 Massachus etts 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 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 fmd 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 
will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) ofthe Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with progressive post-baccalaureate 
experience equivalent to an advanced degree. The petitioner seeks employment as a mathematics 
teacher at the l a public high school in Baltimore, Maryland. The petitioner asserts 
that an exemption from the requirement of a job offer, and thus of a labor certification, is in the 
national interest of the United States. The director found that the petitioner qualifies for the 
classification sought, 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) ofthe 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 with at least 
five years of progressive post-baccalaureate experience, which the USCIS regulation at 8 C.F.R. 
§ 204.5(k)(2) defines as equivalent to a master's degree. (At the time she filed the petition, the 
petitioner had taken some graduate-level courses but had not yet received a graduate 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 
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by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101 st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 
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 Dept. of Transportation (NYSDOI), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered 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. Next, the petitioner must show that the proposed benefit will be national in 
scope. Finally, the petitioner must establish that the alien will serve the national interest to a 
substantially greater degree than would an available United States worker having the same minimum 
qualifications. 
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. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The intention behind the term "prospective" is 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. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability'' as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140 petition on May 11, 2012. In an accompanying statement, 
counsel stated that the petitioner's "petition for waiver of the labor certification is premised on her 
Masters Degree in Education and more than seventeen (17) years of inspired, innovative, and 
progressive teaching experience in both the United States and the Philippines." Counsel also stated 
that the petitioner received "commendations for her novel, results-driven teaching strategies and 
dedication to her students, colleagues, and educator community." 
·-·- . ---·- ·---- ·-· ---··--- --------- ----------- --·-------------
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While counsel stated that the petitioner earned a master's degree, a credential evaluation in the 
record does not indicate that she holds such a degree. Instead, the evaluator concluded that the 
petitioner's progressive post-baccalaureate experience is equivalent to a master's degree, as 
provided under the regulation at 8 C.P.R. § 204.5(k)(2). Throughout the proceeding, counsel refers 
to the petitioner's "master's degree [and] over 17 years of experience" as though they were two 
separate things, when in fact the petitioner's experience serves in place of an actual master's degree. 
Academic degrees, experience and institutional recognition (such as awards and commendations) 
are all elements that can contribute toward a finding of exceptional ability. See 8 C.P.R. 
§ 204.5(k)(3)(ii)(A), (B) and (F), respectively. Exceptional ability, in tum, is not self-evident 
grounds for the waiver. See section 203(b )(2)(A) of the Act. Particularly significant awards may 
serve as evidence of the petitioner's impact and influence on her field, but the petitioner did not 
demonstrate the significance of the awards documented in the record. The documented awards are 
from various employers, reflecting contributions that the petitioner made within a given school 
system rather than across her profession. The best certificates establish a high level of professional 
competence. Others (such as a "Perfect Attendance" certificate) represent professional incentives 
that are not directly 
relevant to the petitioner's accomplishments as a teacher. 
Counsel stated that the record contains a "Letter[] of Recognition ... From 
" The letter, dated May 4, 2010, reflected on the 2009-2010 
school year, and contained no specific information about the petitioner. The general nature of the 
content suggests that the letter is a "form" letter sent to multiple recipients within Baltimore's 
public school system. 
The petitioner submitted more personal letters from administrators, teachers, students and parents of 
students with whom the petitioner has worked. These letters praised the petitioner's abilities as an 
educator, but did not indicate that the petitioner's work has had or will continue to have an impact 
outside of the classrooms and local school systems that have employed her. 
The director issued a request for evidence on September 5, 2012, stating: "The petitioner must 
establish that the beneficiary has a past record of specific prior achievement with some degree of 
influence on the field as a whole." 
Much of the petitioner's response to the request for evidence concerned the intrinsic merit of 
mathematics education, which does not distinguish the petitioner from others in the same field. 
Current law provides no blanket waiver for math teachers, and therefore general assertions about the 
value of the profession cannot establish eligibility for the waiver. Other materials stressed the need 
for education reforms, but did not show what role, if any, the petitioner has played in implementing 
such reforms. 
Counsel acknowledged that the director is "required by law" to follow NYSDOT, and presented 
"legal and factual premises" upon which to base "affirmative decisions without deviating from said 
precedent case." First, counsel stated that the Immigration Act of 1990 (IMMACT 90), which 
created the national interest waiver, "specifically stated - 'this bill provides for vital increases for 
entry on the basis of skills, infusing the ranks of our scientists and engineers and educators with 
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new blood and new ideas.'" The quotation does not come from the statute itself, as counsel 
indicated, but rather from comments made by then-President George H.W. Bush as he signed the 
legislation into law. IMMACT 90 included the waiver provisions, but it also specifically stated that 
members of the professions - including educators, scientists, and engineers - are generally subject 
to the job offer requirement. The president's comments referred not to the waiver, but to "vital 
increases" in the number of immigrant visas made available to members of the professions - such 
visas typically made available through the job offer requirement, also enshrined in IMMACT 90. 
users has never interpreted the statute as granting blanket waivers to scientists, engineers, or 
educators. The NYSDOT precedent decision denied the waiver to an engineer. Therefore, the 
president's reference to "educators" in the same sentence as "scientists and engineers" does not 
establish or imply a presumption of eligibility for the waiver. 
Counsel presented the following as a quotation from NYSDOT: 
Supplementary information published at 56 Federal Register 60897, 60900 
(November 29, 1991) states that the application of national interest should be 
flexible as possible, yet an alien seeking to meet the standard must make a showing 
significantly above that necessary to prove the 'prospective national benefit' as 
required of all aliens seeking to quality as 'exceptional.' 
The above passage is not an entirely accurate quotation. The actual NYSDOT passage reads: 
Supplementary information to Service regulations implementing the Immigration 
Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 
1991), states: 
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."] 
Jd. at 217-18. In quoting the above passage, counsel emphasized the phrase "should be as flexible 
as possible," while also quoting (but not emphasizing) the portion that stated that aliens seeking the 
waiver "must make a showing significantly above that necessary to prove the 'prospective national 
benefit'" required under section 203(b)(2)(A) ofthe Act. 
Counsel contended that USCIS must now exercise the required flexibility by considering newer 
legislation. Counsel stated: 
Three (3) years after the 
AAO [issued the] In the Matter of New York Department of 
Transportation precedent decision, U.S. Congress put into law the No Child Left 
Behind Act of2001. ... 
.. --- -- ---------- - --------------
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Through the No Child Left Behind Act of 2001, the United States Congress has in 
effect remarkably engraved the missing defmition upon the concept of 'in the 
national interest,' which centered it on the 'Best Interest of American School 
Children.' More importantly, U.S. Congress also provided the means to achieve this 
now defmed 'in the national interest,' i.e., 'Hiring and Retaining Highly Qualified 
Teachers.' ... 
With this, the Service now has a defmite working definition of 'in the national 
interest' including the clear standard on what qualifications must be required from 
NIW teacher self-petitioners, as mandated by No Child Left Behind Act of 2001. 
There is no longer vagueness or obscurity like what happened in the New York State 
Department of Transportation Case, which left the Immigration Service with over­
reaching discretion in imposing even the impossible from NIW teacher self­
petitioners. 
Counsel's analysis, above, rests on unfounded speculation. Counsel claims that, by defming the 
term "Highly Qualified Teacher" in the No Child Left Behind Act (NCLBA), Congress implied that 
any foreign teacher meeting that definition is entitled to a national interest waiver. The NCLBA, 
however, does not contain any immigration provisions that directly address the waiver. Counsel 
provided no example of legislation by which Congress meant to establish immigration policy 
without actually mentioning immigration. 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). 
When Congress seeks to change immigration policy, it does so by passing immigration legislation, 
such as IMMACT 90 or section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, 
Pub.L. 106-95 (November 12, 1999). The latter legislation, passed in direct response to NYSDOT, 
specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to that 
Act, to create special waiver provisions for certain physicians. In doing so, Congress demonstrated 
that it has the authority to create blanket waivers, something that, to date, Congress has not done for 
teachers, "highly qualified" or otherwise. 
Counsel claimed: ''the USCIS-Texas Service Center is requrrmg more from the beneficiary's 
credentials and tantamount to having exceptional ability," even though one need not qualify as an 
alien of exceptional ability in order to receive the waiver. As noted previously, the threshold for 
exceptional ability is below, not above, the threshold for the national interest waiver, a point that 
counsel reiterated by quoting a portion of NYSDOT to that effect. The director did not require the 
petitioner to establish exceptional ability in her field. Instead, the director observed that the 
petitioner's evidence does not show that the petitioner's work has had an influence beyond the 
school districts where she has worked. NYSDOT, which neither Congress nor any court has 
overturned, does not require a strict showing of exceptional ability, but it does require "a showing 
significantly above that necessary to prove the 'prospective national benefit"' that all aliens of 
exceptional ability must demonstrate (even when their petitions include labor certifications). 
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Page7 
Counsel listed previously submitted exhibits, which the director had already judged insufficient to 
establish eligibility, as well as new exhibits. The new exhibits include a May 2012 (no exact date 
specified) letter from which, like the May 4, 2010 letter submitted 
previously, does not mention any specific achievement by the petitioner, and appears to be a "form" 
letter sent to Baltimore school employees. 
Other witnesses provided new letters with 
the petitioner specifically in mind. Like the frrst group of 
letters, these new letters contained praise for the petitioner's skills, dedication, and character, but do 
not show that the petitioner's work has, on a national scale, arrested or slowed the decline in 
education which forms much of the basis for the waiver claim. The witnesses praised the 
petitioner's methods, but the record does not show that other schools are implementing these 
methods. Rather, the petitioner's impact appears to be limited to the school where she works. 
In her own statement, the petitioner provided "a brief overview of ... the 
HIGH SCHOOL," which "caters [to] young adult residents of .. who left school 
and are at risk of dropping out [of] traditional schools." The petitioner stated that the I 
Jffers "an Alternative Option Program (AOP) to help each and every young adult fmish 
high school by getting a diploma through Maryland high school requirement[s] or GED" (General 
Educational Development). Such schools are important because they give disadvantaged students a 
second chance at a basic education, but it does not follow that teachers at such institutions are 
entitled to a blanket waiver of the job offer requirement. 
The petitioner stated that she is "planning to continue [her] master's degree in special education," 
and ''to pursue [a] PhD (Doctor of Philosophy) in Statistics and Research to be able to conduct a 
study that will focus on helping young people to succeed." The petitioner's future plans cannot 
establish a past record of impact and influence on her field. 
Also submitted, without further comment, was a copy of a May 9, 2012 electronic mail message 
from the "Human Capital International Support Team." The message reads, in part: 
As per the guidelines established by the U.S. Department of Labor, the district has 
completed the federally mandated market test. ... 
Your certification area passed the market test and you have been selected for 
sponsorship for permanent labor certification as a Mathematics Teacher. . . . 
Human Capital staff will follow up with you regarding next steps in the PERM 
application process in May, 2012. 
The above message indicates that the petitioner's employer intends to apply for labor certification 
on her behalf, and (upon approval of the labor certification) file an immigrant petition on her behalf 
The date ofthe message, May 7, 2012, is four days before the petition's filing date, meaning that 
the petitioner was aware of her employer's intent as of the petition's filing date. 
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Even though the petitioner showed that her employer intends to seek labor certification, counsel 
asserted the "tedious process of labor certification will delay if not completely frustrate the 
employment of 'Highly Qualified' teachers" because, for labor certification, teachers "require only 
a bachelor 's degree," which ''would not meet the objective of the employer to hire highly qualified 
teachers pursuant to No Child Left Behind." Counsel likewise asserted that the labor certification 
process cannot take into account the petitioner's "over 17 years of experience." Section 9101(23) 
of the NCLBA defines the term "highly qualified teacher." One of the criteria for that designation 
is that the teacher "holds at least a bachelor's degree." The statute also makes it clear that a 
''teacher who is new to the profession" can be "highly qualified." Therefore, the wording of the 
statute does not support counsel's implied claim that the NCLBA mandates the hiring of 
experienced teachers with advanced degrees. Counsel submitted no evidence to show that the labor 
certification process has systematically prevented or impeded the hiring of "highly qualified 
teachers." The 
characterization of the labor certification process as ''tedious" is beside the point. 
Nothing in the legislative history suggests that the national interest waiver was intended simply as a 
means for employers (or self-petitioning aliens) to avoid the inconvenience ofthe labor certification 
process. NYSDOT, 22 I&N Dec. 223. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." While AAO precedent decisions are binding on all 
USCIS employees in the administration of the Act, unpublished service center decisions are not 
similarly binding. (In the case of a service center approval, there exists no written decision.) 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher." Even assuming that the service center correctly approved that 
petition, the approval does not, in any way, endorse or lend weight to the assertion that 
teachers are collectively entitled to a blanket waiver of the job offer/labor certification requirement. 
The director denied the petition on January 10, 2013. The director stated: "Eligibility for the waiver 
must rest with the beneficiary's own qualifications rather than with the position sought. . . . A 
petitioner must demonstrate that the beneficiary has a past history of achievement with some degree 
of influence on the field as a whole." The director listed the petitioner's submissions, and stated: 
"Her achievements have impacted her current and past employers. However, the evidence does not 
establish that her past history of achievement had some degree of influence on her field as a whole." 
The director added that "the 'No Child Left Behind Act' ... does not apply to Immigration Law," 
and that the approval of one petition does not mandate the approval of petitions with roughly similar 
fact patterns. 
On appeal, the petitioner submits a brief in which counsel repeats many of the assertions already 
addressed above in the context of the request for evidence. For instance, counsel repeats the 
assertion that, by passing the NCLBA, Congress provided guidance that was absent at the time of 
NYSDOT's publication. Counsel 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 
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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 
prospec~ively 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, highlighted 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." Counsel has, thus, directly quoted the statute that 
supports the director's conclusion. By the plain wording 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." Neither the Immigration and Nationality Act nor the No Child 
Left Behind Act, separately or in combination, create or imply any blanket waiver for teachers. 
Counsel contends that NYSDOT "is obviously good in so far as NIW cases filed by Engineers are 
concerned but does not give justice to other professionals especially since the facts are definitely 
distinct from each other, not to mention subsequent legislations intended to provide guiding 
principles to implement [the] Immigration Act of 1990." Counsel did not identity any "subsequent 
legislations." Counsel fails to support the assertion that NYSDOT applies only to engineers. While 
that specific decision happened to involve an engineer, the three-pronged national interest test was 
not narrowly focused on engineers. It may be that the waiver is not easily obtained by teachers, but 
this does not prove that the NYSDOT formula is fatally flawed; counsel has made no persuasive 
assertion that Congress intended the waiver as a means for large numbers of teachers to avoid the 
job offer requirement (including labor certification). 
Counsel asserts that a key goal of the NCLBA was "closing the achievement gap," but counsel 
presents no evidence that the petitioner has made progress in closing that gap on a scale significant 
enough to meet the NYSDOT standards. The assertion that the petitioner has "proven success in 
raising proficiency of his [sic] students" does not show wider success outside her own classroom. 
The assertion that "[a]s a teacher of Mathematics, [the petitioner] plays a primary role in 
accomplishing the law's goal of closing the achievement gap in the core area of Math" applies to all 
qualified math teachers, and does not single out the petitioner for a waiver that, by design, relies on 
individual circumstances rather than the overall importance of a particular profession. 
Counsel asserts that the Teach For America program, which recruited new college graduates to 
teach in disadvantaged areas, has produced disappointing results. It is a false dichotomy, however, 
to imply as counsel does that the only two solutions to the education crisis are Teach For America 
or a blanket waiver for "Highly Qualified Teachers." 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
Congress has not established any blanket waiver for teachers. Eligibility for the waiver rests not on the 
basis of the overall importance of a given profession, but rather on the merits of the individual alien. 
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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 ofthe 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.