dismissed EB-2 NIW Case: Education

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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 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: TEXAS SERVICE CENTER FILE: 
MAY 272014 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien W6rker 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: 
SELF-REPRESENTED 
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 instn ,ctions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
7-Ron Rosenbe 
Chief, Administrative Appeals Office 
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 
us 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 progressive post-baccalaureate 
experience equivalent to an advanced degree. 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 the defined equivalent of 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 statement and supporting exhibits. 
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 the 
defined equivalent of 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, 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 reNew 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 establishthat 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 I-140, Immigrant Petition for Alien Worker , on May 24, 2013 . The 
petition included Form ETA-750B, Statement of Qualifications of Alien, as required by the regulation 
at 8 C.P.R. § 204.5(k)(4)(ii). On that form, the petitioner identified her prospective employer as the 
Virginia, 1,200 miles east-northeast of 
that she previously taught at 
February 2007 to August 2012 , and for the 
February 2013. 
but stated that she intends to continue to reside in 
, Texas. On the same form, the petitioner stated 
m , Virginia, from 
from September 2012 to 
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In a statement accompanying her petition, the petitioner listed six criteria from the "USCIS.portal site," 
claimed to meet five of them, and stated that she therefore qualifies for the national interest waiver. The 
listed criteria actually paraphrase the standards for exceptional ability listed under the USCIS regulation 
at 8 C.F.R. § 204.5(k)(3)(ii). Section 203(b )(2)(A) of the Act indicates that aliens of exceptional ability 
are typically subject to the job offer requirement; the petitioner cannot establish eligibility for the waiver 
by showing exceptional ability in her field. 
The petitioner stated that "granting this waiver will not deny or displace a US citizen or permanent 
resident," because "not many able US Citizens and permanent residents would be willing to work and 
stay in a school when the performance levels of students are not very high." A shortage of qualified US 
workers is generally not grounds for approving the waiver, 
because the labor certification process exists 
to address such shortages, and to test claims that qualified U.S. workers are unavailable. See NYSDOT, 
22 I&N Dec. at 218, 222. 
The petitioner offered general assertions about how education benefits society, stating, for example: "I 
am helping kids prepare for college, so that they can become doctors, engineers, scientists, etc." These 
assertions address the intrinsic merit of teaching, but there is no blanket waiver for teachers. Congress 
defined teachers as members of the professions under section 101(a)(32) of the Act, and applied the job 
offer requirement to members of the professions at section 203(b )(2)(A) of the Act. Therefore, the plain 
wording of the statute shows that teachers are generally subject to the job offer requirement, and general 
claims about the overall importance of teaching and education cannot suffice to qualify a· particular 
teacher for the national interest waiver of that requirement. In the absence of legislation to create a 
blanket waiver for a given occupation (such as section 203(b )(2)(B)(ii) of the Act, which created such a 
waiver for certain physicians), eligibility for the waiver ultimately rests on the individual merits of the 
foreign worker seeking the waiver. See NYSDOT, 22 I&N Dec. at 217. 
With respect to her individual merits, the petitioner stated: 
I believe[] that I am no ordinary teacher and I deserve to receive the benefit under the 
National Visa Waiver Program (NIW) [sic] .... 
My employment at was a milestone .... The school where I am 
teaching may not be the poorest school when it comes to academic achievement but it 
was one of the low performing schools especially in the Sciences .... During my stay at 
I designed experiment[s] and syllabus for the 
science department of the school. ... My teaching strategies and programs , helped 
improve student's [sic] performance in the cl.assroom and also in their state given 
examination .... 
My employment at gave me another opportunity to show that 
I have something to offer beyond the ordinary. The Physics C-Mech course syllabus 
that I prepared was applauded by the College Board; they recognized that I am 
providing my student[s] with academic rigor and college-level experience .. . . 
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The petitioner submitted several pages of statistics regarding 
from the web site of the The significance of this data is not always 
apparent. The table "Accreditation Adjusted Pass Rates" shows a decline in 
one-year pass rates in four 
out of five subjects from 2010-2011 to 2011-2012, with no change in the fifth subject (mathematics). 
The "Science Performance" table shows a decline in test scores from 2009-2010 to 2011-2012. Grade 8 
science pass rates for all students rose from 94% in 2009-2010 to 95% in 2010-2011, but fell to 91% the 
following year. The petitioner did not explain how the submitted statistics demonstrate the 
improvement that the petitioner claimed. 
The petitioner also submitted undated printouts, reporting the test scores of the petitioner's students. 
One set of scores shows six labeled "Fail," 30 "Pass/Proficient," and 26 "Pass/Advanced." Another set 
of scores shows one "Fail," 41 "Pass/Proficient," and 16 "Pass/ Advanced." A third list, organized 
alphabetically by student name, shows numerical test scores with no explanation of their significance 
(such as cutoff numbers for passing). The petitioner did not show how these three printouts relate to 
one another. 
To support her claim that her syllabus "was applauded bv the CoJle2:e Board." the oetitioner submitted a 
letter from vice president of the 
The letter reads, in part: 
The College Board is pleased to announce that your Physics C-Mech course syllabus is 
authorized to use the AP® designation for the 2012-2013 academic year at 
The College Board applauds and recognizes your efforts to provide your 
students with the academic rigor and college-level experience that is the promise of AP. 
What Does Authorization Mean? 
The authorization of your syllabus is an official recognition by the College Board that it 
meets or exceeds the expectations colleges and universities have for your AP subject. 
Mr. 's letter appears to be a "form" letter, issued to teachers who seek to offer AP courses. The 
letter shows that the petitioner's syllabus qualifies as an AP course, but it is not evidence that the 
petitioner's work has attracted wider attention or influenced the teaching of high school physics. There 
exists no blanket waiver for all teachers of AP courses, and the evidence submitted does not show how 
the petitioner is different from other such teachers. 
The petitioner submitted copies of recommendation letters from officials at the schools where she has 
worked. The witnesses were complimentary toward the petitioner, but did not claim or demonstrate that 
her work has had an impact outside of the individual schools, or has influenced the field as a whole. 
The director issued a request for evidence on July 13, 2013, instructing the petitioner to submit 
evidence to meet the three prongs of the NYSDOT national interest test. In response, the petitioner 
stated that she "underwent a tedious screening process before getting the job ," and then ·"came up 
with the syllabus and experiments" used in her class. The director did not dispute that the petitioner 
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is a qualified and productive teacher, but eligibility for the waiver requires more than showing that 
she is a good science teacher. 
The petitioner asserted: "I am not just an ordinary teacher if compared to those with the same level 
of education, training and exposure as I [have] and I am still improving my craft as the needs of time 
changes." The petitioner observes that there is no geographical limitation on science education, but 
this does not mean that the efforts of a single teacher produce benefits that are national in scope. See 
NYSDOT, 22 I&N Dec. at 217 n.3. 
The petitioner repeated the claim that qualified U.S. workers are unlikely to compete with her for 
employment. If this claim is true, then it means the petitioner would have a greater chance of 
receiving an approved labor certification. As such, it does not show that a waiver of the job offer 
requirement is in order. 
The petitioner stated: 
I may not need an employer, because I can be an independent contractor, this way I 
can serve an even wider clientele as compared to me getting an employer, and it will 
only limit my work scope based on the scope of the curriculum followed. 
Should, labor certification be waived on my favor [sic], I can immediately start 
helping companies needing my expertise in the field of science specifically in 
Physics. With HlB [nonimmigrant status] I was only allowed to work for my 
sponsor, and [if] I ... get an employer to petition for me for [an] immigrant visa, I 
will again be bound by my contract with them. However, with visa waiver [sic] on 
my side, once approved, I can start a tutorial business online and on site to help those 
students who are not enrolled in the school where I am teaching at, and those 
preparing for college entrance exams. The online physics tutorial will be able to 
reach students all over the country and even outside of U.S. This I cannot do once I 
am bound by one employer. I also, can provide employment given a chance, while I 
can still teach in a regular school set up, if I am able to open my own tutorial school, 
the scope of service I can offer will be wider. I can design more tools that are not 
limited by a school curriculum. 
The petitioner initially stated that she intended to work for the as 
a physics teacher. Her initial statement contained no indication that she would "be an independent 
contractor," operating "a tutorial business online" and running her "own tutorial school." The 
petitioner, therefore, has substantially revised her claims in an effort to meet the "national scope" 
prong of the NYSDOT national interest test. 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) 
Furthermore, the petitioner has not established that she has any past experience as a contractor, 
online tutor, or school proprietor as described above. An applicant or petitioner must establish that 
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he or she is eligible for the requested benefit at the time of filing the benefit request. 8 C.P.R. 
§ 103.2(b)(1). USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). Speculation about possible success in future ventures cannot show that the 
petitioner is now eligible for immigration benefits. With no demonstrated track record in the 
described ventures, there is no reliable basis to conclude that the petitioner will succeed at a level 
that would justify approval of the national interest waiver. 
The petitioner submits copies of evaluations from In each 
evaluation area, the four possible rankings are "Unacceptable," "Needs Improvement," "Meets 
Expectations," and "Exceeds Expectations." The petitioner usually received the third ranking, 
"Meets Expectations," but occasionally received "Needs Improvement" ratings on specific areas, 
mostly relating to "Classroom Management." The petitioner did not show how these rankings 
support her claim to be "no ordinary teacher" and therefore deserving of an exemption from the job 
offer requirement that normally applies to professionals such as school teachers. 
The petitioner submits statistics showing a significant increase in the "Number of Passed AP Physics 
Exams by Year in between 1993 and 2013. The statistics show only how many students 
passed the exams, not how many took the exams each year. Without that information, it is 
impossible to determine whether the increase is due to improved quality of AP education, or to an 
increase in the number of students taking the exams. The submitted information shows that the 
petitioner is one of 186 AP science teachers in the in 2012-2013, and the record does not 
show that the petitioner was disproportionately responsible for the increase in the number of passed 
exams from 2011-2012 to 2012-2013. (That increase was incremental compared to the much larger 
increase between 2010-2011 and 2011-2012, which preceded the petitioner's arrival in the district.) 
Two new letters accompanied the petitioner's response to the request for evidence. The witnesses -
both college professors - attested to the petitioner's participation in professional development 
activities. Cover letters from the that accompanied the 
petitioner's teaching licenses contain this passage: "License renewal is based upon an individualized 
professional development plan with the completion of 180 professional development points within a 
five-year validity period." The witnesses did not demonstrate that the petitioner's activities 
distinguished her from other Virginia teachers who, like the petitioner, must meet ongoing 
professional development requirements as a condition of continued licensure. 
The director denied the petition on December 3, 2013, stating that the petitioner had satisfied basic 
licensing requirements to teach physics in Virginia and Texas, but being a qualified teacher does not 
establish eligibility for the waiver. The director found that the petitioner had not established that the 
benefit from her work will be national in scope, or that the petitioner has influenced her field as a 
whole. 
On appeal, the petitiOner protests that the director's decision referred to her as "an electrical 
engineer" and as a "middle school teacher." The petitioner states: "there is no denying that I am a 
high school teacher." The reference to electrical engineering, in the first sentence of the decision, is 
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clearly an error, but not one that prejudiced the outcome of the decision. The balance of the decision 
accurately relates to the present record of proceeding. 
With respect to the references to "middle school," most of the petitioner's documented employment 
in the United States has been at the middle school level, in Virginia. She taught high school physics 
in Texas for part of one academic year before the expiration of her nonimmigrant status in February 
2013. When she filed the petition in May 2013, the petitioner had returned to Virginia, where she 
had taught middle school. In her own introductory statement, the petitioner stated: "I am a 
middle/high school instructional teacher." The petitioner has not shown that the director's use of the 
phrase "middle school teacher" affected the outcome of the decision. 
The petitioner repeats the assertion that she is "no ordinary teacher," and that she s;trives "to 
motivate even the one's [sic] with no drive to study to realize the importance of education." The 
petitioner notes that she previously submitted copies of her evaluations. The petitioner did not 
explain how those evaluations support her assessment of her abilities as a teacher whose 
"employment . 
. . was a milestone" and whose performance "exceeded the performance of [her] 
predecessors." 
The petitioner states "there was already a pre judgement [sic] as to whether a Teacher will be able to 
qualify for the waiver, for as long as the impact is only in one school, labor certification is required. 
If this is the case no single school teacher may qualify for the waiver." As a matter oflaw, teachers , 
as members of the professions, are presumptively subject to the job offer requirement. It is clear 
from the plain wording of section 203(b )(2)(A) of the Act that exceptional ability is not sufficient 
grounds for a waiver of that requirement. Thus, it is a basic fact 
that being a school teacher, even an 
exceptional one, is not a sufficient basis for the national interest waiver. 
The petitioner contends that "a certain percentage" of her students might go on to "create scientific 
breakthroughs that will benefit this great country or humanity." Such impact would be indirect, 
crediting the petitioner with the achievements of other, and the petitioner has not shown that any of 
her former students have produced such results so far. Speculation that a now-unidentifiable student 
rriay go on to a productive career in the sciences is an insufficient basis for approving the waiver. 
A school teacher can exert broader influence on the field through activities beyond routine classroom 
teaching, for instance through development of textbooks or curricula that then see widespread use. 
The petitioner in this proceeding has not shown that she has had an influence in this way. Her stated 
intention, in response to the request for evidence, to engage in wider activities deviates from her 
initial claims, and the petitioner has documented no past record to justify expectations of future 
success in such ventures . ' 
The petitioner makes general assertions about the importance of education, which apply to all 
qualified teachers. There is no collective waiver for teachers, and therefore the petitioner's 
membership in that profession does not qualify her for the waiver. The petitioner states: "Giving 
Instructional Teachers a fair chance to obtain lawful permanent residence ... will eventually have a 
prospective effect to the US nation as a whole." The petitioner, here, speaks to the collective rather 
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than individual impact of such teachers. Furthermore, even if the petitioner had established that the 
existence of the job offer requirement deprives foreign teachers of "a fair chance to obtain lawful 
permanent residence" (which she has not done), the job offer requirement is a statutory provision 
that we have no discretion to modify or disregard. As shown by the existence of section 
203(b )(2)(B)(ii) of the Act, Congress has the authority to designate blanket waivers for given 
occupations. Congress has not delegated that authority to USCIS. See NYSDOT, 22 I&N Dec. at 
217. 
The petitioner questions the applicability of the NYSDOT precedent decision, which concerned a 
bridge engineer. The petitioner contrasts engineers and teachers in various ways. The NYSDOT 
national interest test, however, was designed to be broadly applicable over the range of occupations 
covered by section 203(b )(2) of the Act, including both engineers and teachers and many others. 
The petitioner states that her evidence "shows that there is [a] shortage of workers [in her] field." 
Authority to determine the availability of qualified U.S. workers rests with the Department of Labor, 
through the labor certification process. See NYSDOT, 22 I&N Dec. at 218, 222. The petitioner has 
essentially claimed that the labor certification process will prevent her continued employment in the 
United States, but she has not explained why this is so, or why it would serve the national interest to 
override an existing, legally mandated procedure that already takes worker shortages into account. 
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." Id. 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 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 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.