dismissed EB-2 NIW Case: Education

(b)(6)
DATE: MAR 1 8 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Seeurity 
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 
OFFICE: TEXAS SERVICE CENTER 
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 rffim.igration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this· matter have been returned to the office that originally decided your case. Please be a,dvised 
that any further mquiry 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.oscis.gov 
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DISCUSSION: 'fl?e 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 holding an advanced degree. The 
petitioner seeks employment as a secondary school mathematics teacher for Prince George's County 
Public Schools (PGCPS). At the time she filed the petition, the petitioner taught at Bladensburg High 
School, Bladensburg, 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 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 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 increasing the number and proportion of visas for immigrants who would be~efit 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, 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 reNew York State Dept. of Transportation (NYSD01), 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 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 AAO also notes that 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 April 17, 2012. In an accompanying statement, 
counsel stated that the peti~ioner seeks the national interest waiver, but counsel did not address the 
guidelines set forth in NYSDOT. Instead, counsel listed the evidence submitted, and cited the 
petitioner's "Master's Degree in Teaching Mathematics, over twenty (20) years of progressive work 
experience . . . , and most importantly, the awards she received" from government· bodies with 
oversight over various schools in the United States and the Philippines. 
· Degrees, experience, and recognition for achievements and contributions are all elements of a claim 
of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and (F), respectively. Thus, counsel 
essentially claims that the petitioner merits a waiver as an alien of exceptional ability in her field. 
As noted previously, exceptional ability in the sciences, the arts or business is not sufficient to 
(b)(6)
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warrant the national interest waiver. 
The plain wording of section 203(b)(2)(A) ofthe Act indicates 
that aliens of exceptional ability are, by default, subject to the job offer requirement (including labor 
certification). 
In a personal statement, the petitioner described her background and listed her goals, such as ''[t]o 
make education rigorous and relevant for all students and prepare them for their future filed [sic] in 
mathematics" and "to create a class website." . Like counsel, the petitioner did not mention the 
NYSDOT guidelines. · Instead, the petitioner stated: "I have resorted to· this kind of application 
because my 1-140 (Immigration Petition for Alien Worker) application to be attached to my 
approved PERM Labor certification was not accepted for filing, due to the issues committed by 
>ublic School System." 
Regarding those "issues," the Department of Labor invoked the debarment provisions of section 
212(n)(2)(C)(i) of the Act against , owing to certain immigration violations by that employer. 
As a result, between March 16, 2012 and March 15, 2014, USCIS cannot approve any employment-
based immigrant or nonimmigrant petitions filed by : 
. 1 This debarment means that 
is, temporarily, unable to file its own petition on the alien's behalf, and thus explafns why labor 
certification is not an option in the short term. The inapplicability or unavailability of a labor 
certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still 
must demonstrate that the alien will serve the national interest to a substantially greater degree than 
do others in the same field. NYSDOT, 22 I&N Dec. at 218 n.5. Neither the Texas Service Center 
nor the AAO is responsible for the debarment, and those entities have no authority to override or 
modify it. When the Department of Labor has penalized a given employer for abuse of the 
immigration process, it is not self-evidently in the national interest to circumvent that penalty by 
granting immigration benefits directly to prospective foreign employees, without the safeguards 
built into the job offer/labor certification process. Any waiver must rest on the petitioner's 
individual qualifications, rather than on the circumstances that (temporarily) prevent from 
filing a petition on her behalf. 
Materials in the record show that the petitioner's students have, on average, scored as "proficient" 
(the middle rank between ''basic" and "advanced") on. math examinations. An electronic mail 
message from indicated "a +5% increase from ore to oost 
quiz scores" in the petitioner's class. Another document, with the heading 
stated that there was an "average +6% change" in "Pre-Quiz to Post-Quiz 
results" throughout the systerri, indicating that the improvement in the petitioner's class was 
slightly below the average 
system-wide improvement. 
The petitioner submitted copies of various materials relating to her work, including certificates, 
evaluations, school newspaper articles and photographs. Similarly, several witness letters show that 
colleagues and administrators hold the petitioner in high regard. These materials demonstrate that 
the petitioner is a successful teacher, but they do not self-evidently set her apart from other 
competent and qualified teachers. The materials also do not show that the petitioner's work has or 
1 The list of debarred employers is available online at http://www.dol.gov/whdlimmigration!HIBDebannent.htm 
(printout added to record March 13, 2013). 
(b)(6)Page 5 
will directly result in significant benefits beyond her own classroom and the local school systems 
that have employed her. 
The director issued a request for evidence on July 23, 2012. In that notice, the director 
acknowledged the intrinsic merit of the petitioner's occupation, but stated that the petitioner had not 
satisfied the other prongs of the NYSDOT national interest test. The director stated that the overall 
importance of the petitioner's field of endeavor does not, by itself, qualify the petitioner for the 
national interest waiver. 
In response, the petitioner stated: "I am one of those 'Born to be a Teacher.' And to be a teacher 
you must be passionate to these young minds to help them learn and I can be a role model too." 
The petitioner, 61 years old at the time of the quoted letter, also stated: "I will be retiring soon, so 
please do extend my stay, so that within those years I can still help American students." The 
petitioner also asserted that she is her family's sole wage earner, and her spouse "suffers an acute 
illness" and relies on the petitioner's earnings "for his lifetime medications." 
The AAO is not indifferent to difficulties that may face the petitioner and her family. Nevertheless, 
the national interest waiver is an employment-based immigration benefit rather than a form of 
humanitarian relief. Furthermore, the underlying immigrant classification requires substantial 
prospective benefit to the United States, even before one is eligible for consideration for the waiver. 
The petitioner's stated intention to retire within a few years necessarily limits the span during which 
the petitioner would be able to benefit the United States through her employment as a teacher. The 
petitioner cannot plausibly claim that she will produce national benefits in what remains of her 
teaching career without demonstrating that her past work has produced comparable results. 
In an effort to establish the national scope of the benefit arising from the petitioner's work, counsel 
quoted part of the No Child Left Behind Act (NCLBA) and stated: 
given the bureaucratic collaboration by ... Government Institutions and the level of 
concern directed by their efforts, the issue of whether the beneficiary's proposed 
employment as a "Highly Qualified Secondary School Mathematics Teacher" 
transcends the restrictive confines of physical and geographical limitation that 
normally applies to other kinds of employment. ... 
Here; the most tangible national benefit to be derived from a "Highly Qualified 
Secondary School Mathematics Teacher" is rebuilding a society of responsible and 
values-driven citizens including a highly productive and well-balanced work force 
that would translate the current recession adversely affecting the United States of 
America into a formidable economy again. 
Hence, even if [the petitioner] would be fulfillinl! her duties and responsibilities 
within the geographical limitation of the the benefits that would 
be conferred spreads to the entire nation's economy and security. 
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Counsel failed to explain how the actions of one teacher would contribute significantly to 
nationwide social reform and economic recovery. General assertions about the overall importance of 
education, and the need for education reform, do not exempt every teacher from the job offer 
requirement. As members ofthe professions (as defined in section IOI(a)(32) of the Act), teachers are 
subject to the job offer/labor certification requirement ~et forth in sections 203(b)(2)(A) and (3)(C) of 
the Act. Likewise, aliens of exceptional ability who ''will substantially benefit prospectively ... the 
United States" are also subject to the job offer provision of section 203(b )(2)(A) of the Act. Congress 
created no blanket waiver for teachers. It is clear from the statute, therefore, that an alien who works in 
a beneficial profession such as teaching is not automatically or presumptively exempt from the job 
offer requirement, notwithstanding conjecture about what her students may achieve decades in the 
future. 
Counsel listed various awards that the petitioner received and submitted previously, and stated that 
the "above awards and recognitions are difficult to ignore as solid evidence of [the petitioner's] 
competency to influence the improvement of Mathematics Education in the United States of 
America." Counsel did not elaborate further. The listed exhibits included some materials that have 
no demonstrated relationship to math education at all. For instance, the petitioner served as an 
advisor to a school journalism club in the Philippines that won several awards. None of the 
submitted exhibits establish that the petitioner has, so far, "influence[ d] the improvement of 
Mathematics Education in the United States of America" except at the most local level at a handful 
of schools in . Even then, as noted previously, the evidence does not consistently show 
that the petitioner's work has resulted in greater improvement than that of other teachers. If 
the petitioner's influence is largely limited to those students whom she personally teaches, then she 
cannot satisfy the "national scope" prong of the NYSDOT national interest test. 
Counsel quoted comments made by then-President George H. W. Bush when he signed the 
Immigration Act of 1990, which created the national interest waiver. In those remarks, President 
Bush 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 new blood and new ideas." Counsel interprets 
this passage to mean that Congress created the national interest waiver for educators. The 
Immigration Act of 1990, however, was not restricted to the creation of the waiver. It was, rather, 
an overhaul of the entire immigration structure, creating new employment-based immigrant 
classifications to replace the former "third preference" and "sixth preference" classifications 
previously in place. "[S]cientists and engineers and educators" are all members of the professions 
who, under the terms dictated by Congress in the Immigration Act of 1990 (as it amended the Act), 
are all subject to the job offer requirement. · 
Counsel contended that the labor certification process cannot take the petitioner's high level of 
credentials into account. The petitioner herself, .... however, had earlier acknowledged that 
had obtained an approved labor certification on her behalf. If the petitioner has admittedly already 
obtained labor certification, then there can be no credible claim that she is unable to do so. 
The director denied the petition on October 27, 2012, stating: "The issue in this case is not whether 
teaching math students in is in the nation~} interest, but 
whether the beneficiary, to a greater extent than U.S. workers having the same qualifications, plays 
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a significant role in the field." The director concluded: "The petitioner has not established that the 
impact of the beneficiary's activities will be national in scope." 
On appeal, counsel notes that Congress passed the NCLBA three years after the issuance of 
NYSDOT as a precedent decision, and that therefore "[t]here is no longer vagueness or obscurity" 
on the question of whether "highly qualified teachers" serve the national interest. Counsel, 
however, identifies no special legislative or regulatory provisions that exempt school teachers from 
NYSDOT or reduce its impact on them. · 
The assertion that the NCLBA is tantamount to a retraction or. modification of NYSDOT is not 
persuasive; that legislation did not amend section 203(b )(2) of the Act. In contrast, section 5 of the 
Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95 (November 12, 1999), 
specifically amended t4e Immigration and Nationality Act by adding section 203(b )(2)(B)(ii) 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 made a persuasive claim that the NCLBA indirectly implies a similar legislative change. 
Turning to immigration legislation, 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 
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 ... 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's emphasis.) Counsel, above, highlighted the abridged 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 section of relevant law 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 N3;tionality Act nor the NCLBA, separately or in combination, create 
or imply any blanket waiver for teachers, and any attempt to fashion such a waiver out of the 
wording of the statutes must therefore fail. 
Counsel asserted that the director "erred in disregarding 
evidence demonstrating the national scope 
of petitioner's proposed benefit through her [sic] effective role in serving the national educational 
interest of closing the achievement gap." Closing that gap is a national goal, but it does not follow 
that the petitioner's efforts toward that goal are, themselves, national in scope. Counsel did not 
show that the petitioner's individual work significantly "clos[ed] the achievement gap" outside of 
her own classroom. Counsel cited statistics showing "that out of the school districts 
ranked near the bottom" in 2012. By 2012, the petitioner had been working for for 
(b)(6)Page 8 
six years. The district's continued low ranking suggests that, even at the local level, the petitioner's 
efforts have not resulted in measurable overall improvements; the record does not show that the 
petitioner has transformed into a model for other districts to emulate. .Counsel does not 
explain how the petitioner's future work will "clos[e] the achievement gap" when there is no 
evidence that her past work has done so to any significant extent. 
Counsel repeatedly asserts that the NCLBA requires schools to hire "Highly Qualified Teachers," 
and that USCIS thwarts this requirement by rigidly enforcing NYSDOT. Section 1114(b)(l)(C) of 
the NCLBA, 20 U.S.C. § 6314(b)(l)(C), dictates that "[a] schoolwide program shall include ... 
[i]nstruction by highly qualified teachers." The regulation at 34 C.F.R. § 200.56 defines the term 
."highly qualified teacher." Counsel did not discuss the regulation or state-specific 
requirements, or cite any evidence to show that the labor certification process does not permit the 
hiring of "highly qualified teachers." If, by law, a teacher must be "highly qualified" (which is the 
core of counsel's claim), then a teacher who does not meet the applicable requirements is not 
"minimally qualified." Rather, such a teacher is underqualified or unqualified. Counsel has not 
shown that the labor certification process has forced or any other jurisdiction to 
hire teachers who do not meet the requirements of "highly qualified teachers." Rather, because 
"highly qualified" is the statutory standard for such teachers, that term appears to be functionally 
equivalent to the term "minimally qualified" for purposes of labor certification. 
--
Counsel denounces the labor certification process as "tedious," but the national interest waiver is 
not merely a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. NYSDOT, 22 I&N Dec. 223. Furthermore, as noted previously, the petitioner 
herself acknowledges that the Department of Labor approved a labor certification on her behalf, 
which contradicts -counsel's speculative assertions about what might result from the labor 
certification process. debarment prevented the approval of a petition based on that 
approved labor certification, but counsel's claims about the unavailability of labor certification are 
unsupportable. 
The director, in the request for evidence, had informed the petitioner that additional evidence was 
necessary in order to. establish the significance of the various certificates that the petitioner had 
submitted. Counsel, on appeal, protests: "the Immigration Service is requiring more from the 
beneficiary's. credentials and tan~amount to having exceptional ability," even though one need not 
- qualify as an alien of exceptional ability in -order to receive the waiver. It remains that the 
petitioner's certificates do not facially establish eligibility for the national interest waiver. Counsel 
clearly considers these certificates to be significant, listing them again on appeal, while at the same 
time protesting that the petitioner need not explain how the certificates are significant. The director 
did not require the petitioner to establish exceptional ability in her field. Instead, the director made 
the reasonable request for the petitioner to show how the numerous certificates in the record serve 
to establish eligibility for the waiver. The petitioner failed to address that request, and counsel 
cannot mitigate that failure by claiming that the director went "over-board" by making the request 
in the first place. 
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. 
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Page 9 
Congress has not ~stablished any blanket waiver for teachers. Eligibility for the waiver rests not on the 
basis of the overall importance of a gi.ven 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 burden of proof in these proceedings rests solely with the p~titioner. Section 291 of the Act, 
8 U .S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.