dismissed EB-2 NIW Case: Education

(b)(6)
DATE: OEC 0 3 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrative Appeal s Offi ce (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 
Degr ee 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 (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 /fonns 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, 
~Q_,AM __ )~~ 
~' Ron RosenbW 
Chief, Administrative Appeals Office 
'1-Vww.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 AAO on appeal. The AAO 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 the defined equivalent of an 
advanced degree. The petitioner seeks employment as an elementary school teacher. 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 director did not dispute that the petitioner qualifies as a member of the professions with post­
baccalaureate experience equivalent to an advanced degree under the regulation at 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 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 
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). 
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Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT 
90), P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states: 
The Service [now U.S. Citizenship 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, 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. !d. 
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 1-140 petition on June 29,2012. Part 4, line 6 of that form asked: "Has 
any immigrant visa petition ever been filed by or on behalf of this person?" The petitioner answered 
"Yes. " In the event of a "Yes " answer, the form instructed the petitioner to "Attach an explanation, " 
but there is no explanation in the record. USCIS records show tha 
in Maryland filed a Form I-140 petition on October 7, 2008, seeking to classify 
the beneficiary as a member of the professions under section 203(b )(3)(A)(ii) of the Act. That 
petition included an approved labor certification. The director approved the petition on February 4, 
2009, with a priority date of April 30, 2008. 
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The initial filing of the present petition included a short cover letter from counsel, who did not 
articulate any grounds for approving the national interest waiver. Instead, counsel asked for 
"understanding for not being able to submit [a] detailed cover letter" for various reasons, "including 
the fact that so many teachers 
instructed [counsel] to file their NIW petitions." 
The petitioner did not claim any degree 
above a baccalaureate, but submitted evidence of a 
bachelor's degree and over five years of progressive post-baccalaureate experience in her specialty. 
The petitioner possesses the equivalent of a master's degree, under the regulation at 8 C.F.R. 
§ 204.5(k)(3)(i)(B). The petitioner worked at in the Philippines from 
1997 to 2005; at 
system), from October 2005 to July 2011; and at the a private child 
care center in Maryland, from January 2012 to the time of filing. 
The petitioner's curriculum vitae described her educational and professional background. Under 
"Objective," the petitioner did not list any professional goals. Instead, she stated that her objective 
was "[t]o obtain a permanent residency status in the United States of America." 
In a statement that accompanied the petition, the petitioner described her background and stated: 
My teacher's performance record shows outstanding in yearly evaluation until such 
time I resigned in the Philippines. Its impact to school and students maintained high 
performing, 
good track record and consistent discipline towards students. The 
integration of values amongst students tantamount to the performance indicator to 
foster learning and motivation for them. With current trends in education, I want to 
establish myself in the top level management in the few years where I want to be a 
transformational leader. I want to be an administrator in line with management. This 
is to work in fast-pacing management system. The psychology is to bring change to 
the organization; in a way that I am link to both worlds- education and technology. 
My mission and vision in the teaching world in the US: to produce valuable students 
in developing their knowledge, skills and aspiration to be responsible citizens. 
Similar, establishing mission by providing continuous training, development and 
advancement for students and teachers; a continuous research to identify the specific 
factors responsible for successful outcomes and to ascertain their range of 
applicability and the extent to which they can be generalized. I always thought of 
serving the government of the United States of America by supporting the 
government programs for economic development, managing equal opportunities 
among the citizens, and support progression in the government with their ideals and 
principles to make this nation a beautiful place to live in. 
The petitioner's statement did not specifically address the job offer requirement, the national interest 
waiver, or why the petitioner considered herself to be eligible for that waiver. 
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The petitioner submitted copies of several certificates. Some of the certificates acknowledged her 
participation in workshops or her completion of training courses. Others recognized her 
contributions as a teacher. The petitioner did not establish that any of these certificates showed 
impact or influence beyond the local level. 
The petitioner submitted several witness letters. _ mother of one of the petitioner's 
students at expressed appreciation for the assistance her child 
received from "most teachers, especially [the petitioner]." 
instructor at the of the Philippines, stated: 
I have ... been the Adviser of Book Reader's Society with 250 (students) members. 
With the innovative approach in technology ... [the petitioner] has been our 
contributor/consultant for the said organization. Her ideas and knowledge in 
developing the young minds result to [sic] appreciation of students' interests in the 
Arts and Literature. Most the literary genre [sic] had been taught through the ideas of 
the candidate. 
The remaining witnesses are all teachers or administrators at schools where the petitioner has taught. 
For example, principal of stated: "She was always 
innovative and dynamic in the classroom, infusing her students with tremendous motivation and 
instilling in them an appetite for the joys of learning. I consider [the petitioner] to be one of those 
extraordinary educators who always put forth a wholehearted effort with amazing results." 
A March 14, 2011 electronic mail message from early childhood 
literacy coach for Preschool Literacy Project, reads: "CONGRATULATIONS~~~ Your 
class had the highest scores! ... What strategies are you using to help students acquire new 
vocabulary? Could it be the use of technology throughout the day, parent involvement or something 
else?" The record does not show whether or not the petitioner responded with the answer to the 
question, or whether other schools met with similar success by adopting her methods. 
The witnesses hold high opinions of the petitioner's accomplishments and abilities, but they did not 
establish that her work has had any impact or influence on education outside of the schools where 
she has taught. 
On January 16, 2013, the director issued a request for evidence (RFE), instructing the petitioner to 
submit documentation to establish that the benefit from the petitioner's work is national in scope and 
otherwise meets the guidelines set forth in NYSDOT. In response, counsel stated: 
Immigration Act of 1990 (IMMACT 90) which enacted ... the 'National Interest 
Waiver" included 'educators' as among the targets of this legislation, specifically 
stated - 'this bill provides for vital increases for entry on the basis of skills, infusing 
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NON-PRECEDENT DECISION 
the ranks of our scientists and engineers and educators with new blood and new 
ideas.' 
Elsewhere in the brief, counsel clarified that the quoted language comes not from the statute itself, 
but from comments made by then-President George H.W. Bush as he signed the legislation. 
IMMACT 90 did in fact create the national interest waiver, and the president mentioned "educators" 
in his remarks, but it does not follow that a blanket waiver for educators was either the intent or the 
result of the legislation. The same statute plainly subjected professionals - including "scientists and 
engineers and educators" - to the job offer requirement. 
Counsel contended that the NYSDOT decision provided no specific definition of the "national 
interest," and that Congress filled this void with the passage of the No Child Left Behind Act 
(NCLBA): 
Congress has in effect remarkably engraved the missing definition upon the concept 
of 'in the national interest,' centered on the 'Best Interest of American School 
Children. ' More importantly, U.S. Congress also provided the means to achieve this 
now defined 'in the national interest,' i.e., 'Hiring and Retaining Highly Qualified 
Teachers.' Interestingly, "NCLB Act" also specified the ' Standard of a Highly 
Qualified Teacher.' 
In discussing the NCLBA, above , counsel placed several phrases in quotation marks, but none of 
those phrases appears in the text of the NCLBA. The term "best interest ," with respect to children, 
appears only in provisions relating to homeless students. The NCLBA contains no mention of the 
national interest waiver or any immigration benefits for foreign teachers, and it did not amend 
section 203(b )(2)(B) of the Act (which created the waiver). Counsel contends that Congress 
specifically intended to make the waiver available to "highly qualified teachers" when it passed the 
NCLBA, and that "favorable decisions for the NIW teachers" is thereby "honoring the 
Congressional intent in No Child Left Behind Act of 2001." Counsel , however , cited no specific 
language from the statute itself, its legislative history, or the implementing regulations to support this 
claim. 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). 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport , 495 U.S. 552 (1990). Statutory language must be given conclusive 
weight unless the legislature expresses an intention to the contrary. Int 'l. Brotherhood of Electrical 
Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). Here, the 
petitioner has not established that Congress intended to exempt teachers from the job offer 
requirement, either through section 203(b )(2) of the Act, the NCLBA, or any other federal 
legislation. Congress's only direct statement on the matter has been to apply, not waive, the 
requirement. Counsel has not supported the claim that the NCLBA amounts to Congress's definitive 
statement on waiving the job offer requirement for "highly qualified teachers." 
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The NCLBA did not amend section 203(b )(2) of the Act or otherwise mention the national interest 
waiver. In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 
106-95 (November 12, 1999), specifically amended the Immigration and Nationality Act by adding 
section 203(b)(2)(B)(ii) to that Act, to create special waiver provisions for certain physicians. 
Because Congress not only can amend the Act to clarify the waiver provisions, but has in fact done 
so in direct response to NYSDOT, counsel has not established that the NCLBA indirectly implies a 
similar legislative change. 
Counsel's response to the RFE discussed other federal initiatives beyond the NCLBA. These 
programs establish that the federal government places a priority on improving the quality of 
education, but counsel did not establish that any of these programs had the express or implied result 
of changing immigration policy toward teachers. Section 203(b )(2)(A) of the Act remains in effect, 
and therefore teachers, "highly qualified" or otherwise, remain subject to the job offer requirement. 
"Highly Qualified Teachers," as a class, play a significant collective role in implementing the 
provisions of the NCLBA. It does not follow, however, that every such teacher individually 
qualifies for special immigration benefits as a result, or that collective benefit justifies a blanket 
waiver for every such teacher, when the waiver otherwise rests on the specific merits of individual 
intending immigrants. 
Counsel claimed that the labor certification process presents a "dilemma " because the petitioner 's 
qualifications significantly exceed the minimum qualifications that an employer could specify on an 
application for labor certification, and "the employer cannot overstate the qualification requirement 
for the job offer nor can it tailor-fit in favor of the alien worker." In this instance, PGCPS has 
already obtained an approved labor certification for the petitioner, which has formed the basis of an 
approved immigrant visa petition. 
Counsel stated: 
there is more likelihood than not as dictated by experience that replacing 'Highly 
Qualified Teachers' with those having only minimum qualification that these 
federally funded schools would fail to meet the high standard required under the No 
Child Left Behind (NCLB) Law resulting not only [in] closure of these schools but 
loss of work for those working in those schools. 
Counsel identified no "federally funded school" that has closed as a result of failing to meet NCLBA 
standards. Attributing this claim to "experience" cannot suffice in this regard. Also, counsel has not 
shown that awarding the waiver to the petitioner would prevent school closures on a nationally 
significant scale. This assertion is, instead, effectively another claim in support of a blanket waiver 
for "Highly Qualified Teachers ," as the national effect would be collective rather than individual. 
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Counsel cited a need for improvement in science, technology, engineering and mathematics (STEM) 
education, but the record does not establish that the petitioner specializes in teaching those subjects. 
Therefore, counsel has not established the relevance of this assertion, even if one teacher would be in 
a position to resolve the national crisis in teaching those subjects. 
Turning to the petitioner 's individual qualifications, counsel listed several previously submitted 
exhibits , but did not explain how these exhibits satisfy the NYSDOT national interest test. A 
successful teaching career does not establish or imply eligibility for the waiver. 
The director denied the petition on April 17, 2013. The director acknowledged the petitioner 's 
professional credentials and counsel's assertions about the general crisis in public education, but 
paraphrased NYSDOT by stating: 
A waiver of the job offer is not warranted solely for the purpose of ameliorating a 
local labor shortage, because the labor certification process is already in place to 
address such shortages. Similarly, the Department of Labor allows a prospective U.S. 
employer to specify the minimum education, training, experience, and other special 
requirements needed to qualify for the position in question. 
Similar language appears in NYSDOT at 218. That same decision specified "elementary school 
teachers" as an example of an occupation with substantial intrinsic merit, but that lacks national 
scope. Id. at 217 n.3. 
The director determined: "The petitioner did not provide sufficient and convincing evidence that her 
employment will be national in scope nor has she demonstrated that she has prior demonstrable 
achievement s with some degree of influence on the field as a whole. " 
On appeal, counsel devotes the majority of the appellate brief to variations of the basic assertion that 
the NCLBA and other initiatives created an implied blanket waiver for teachers that supersedes 
NYSDOT, but none of these assertions succeed. Counsel repeats, word for word, several pages of 
assertions from the RFE response. There is no support in statute, regulation , or case law to support 
counsel's primary contention that the overall importance of education outweighs the statutory job 
offer requirement that remains in effect. NYSDOT established that USCIS will not declare "blanket 
waivers for entire fields of specialization." Id. at 217. Since the publication of NYSDOT, Congress 
has created only one blanket waiver, for certain physicians as described at section 203(b )(2)(B)(ii) of 
the Act. USCIS will not infer an implied blanket waiver from legislation, such as the NCLBA, that 
contains no immigration provisions. 
Counsel contends that NYSDOT "required vague and overly burdensome evidence more fitting to the 
cause of an Engineer. USCIS is expected to stipulate clear basis for evidences requested and at least 
meritoriously rebut the evidences submitted in the initial filing and in the response to Request for 
Evidence." Counsel asserts that the director did not specify what sort of "contributions of unusual 
significance ... would warrant a national interest waiver." The beneficiary in NYSDOT was an 
··-·····-··· ·· - - ··· --------------
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Page 9 
engineer, but the guidelines in that decision are intentionally broad, and not restricted to engineers . 
Because the waiver is potentially available to workers in a wide range of occupations , there is no 
single, rigid set of specified evidentiary requirements; the available evidence will vary on a case-by­
case basis. The director is not required to speculate as to how an elementary school teacher might 
exert widespread influence on her field. Rather, the petitioner must submit evidence that 
demonstrates such influence. Strong credentials and favorable performance reviews do ·not show 
influence or impact on the field. Counsel's claim that USC IS must "rebut" the petitioner ' s 
previously submitted evidence implies that the petitioner's evidence established an initial 
presumption of eligibility that does not actually exist. 
Counsel states: "Assuming NYSDOT is apposite, the perennial question is what is the standard to be 
met in order that an NIW petitioner's proposed employment will have national-level benefit ." This 
passage incorrectly implies that NYSDOT's applicability is debatable. As a designated precedent 
decision , NYSDOT is binding on all USCIS employees. See 8 C.F.R. § 103.3(c). The director made 
no error in following published precedent, as required. 
Turning to the petitioner's individual merits, counsel asserts that the petltwner "is an effective 
teacher in raising student achievement in STEM" and points to her "proven success in raising 
proficiency of her students ." Counsel cites no evidence on appeal to support these claims, which 
come a page after counsel cited statistics showing that remains an underperforming district 
in Maryland. 
On appeal, counsel contends "the Director is requmng more from the beneficiary's credentials 
tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. It is evident from the statute that the threshold for 
exceptional ability is below, not above, the threshold for the national interest waiver; it is possible to 
establish exceptional ability but still not qualify for the waiver. Also, the director did not require the 
petitioner to establish exceptional ability in her field. Instead, the director found that the petitioner's 
evidence failed to establish that her work has had an influence beyond the school districts where she 
has worked. 
Counsel asserts that the petitioner "has submitted overwhelming evidence" of eligibility, and lists 
several previously submitted exhibits under the heading "Awards and Recognition ." The petitioner 
has not established that these materials are "overwhelming evidence" in her favor. Local recognition 
can help support a claim of exceptional ability, under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F), 
but exceptional ability does not establish or imply eligibility for the waiver. 
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 
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."). 
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By statute , engaging in a profession (such as teaching) does not presumptively entitle such professionals 
to the national interest waiver. 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. 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. 
The AAO 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 petition~r has not 
met that burden. 
ORDER: The appeal is dismissed.