dismissed EB-2 NIW Case: Education

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PATE: MAR 0 8 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
(AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Itiunigrant Petition for Alien Worker as a Mejber of the Professions Holding an Ad~anced 
Degree or an Alien of Exceptional Ability Pucluant 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 Appe?ls Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Ph~ase be advised 
.that ·any further inqujry that you might have concerning your c~se must be made to that office . 
. If you believe the AAO inappropriately applied the law in Lachin~ 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 
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accordance with the instructions on Form I-290B, Notice ofl Appeal or Motion, with a ~ee of $630. The . 
specific requirements for filing such a motion can be found ~t 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 r~open. · 
Thank you, 
Ron Rosenberg 
Acting 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 the Administrative. AJI,eals Office (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 profeksions holding an advanced degree. The 
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petitioner seeks employment as a high school science and math teacher for 
. . in Maryland. The petitioner ha~ taught at sin~ 
2007. The petitioner asserts that an exemption from the r~uirement of a job off~, 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 profession~ holding an advanced degree, but that the 
petitioner has not established that an exemption from the ~equirement 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 . . 1 . 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, culturat or educational interests, or welfare 
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of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) WaiverofJob Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements ofisubparagraph (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 degreb. 1 The sole issue in contention is whether 
1 Counsel has asserted that the petitioner holds a master's degree, and the director did not dispute the claim. A 
transcript from however, indicates only that the petitioner "passed the comprehensive 
examinations for th_e Master of_~ in Teaching ~ajo~ in SciericeJ (MATS} program held on. . _ . _ . 
' The transcnpt does not md1cate that the uruvers1ty had awarded the degree, or that passmg the exammat10ns IS 
the only requirement for the degree. A credential evaluation in the tecord states only that the petitioner holds a degree 
"equivalent to a U.S. Bachelor of Education degree," followed byj "42 U.S. semester credits of graduate studies" in 
environmental science and "30 U.S. semester credits of post graduate professional studies" in "Effective Instructional. 
Practices." Nevertheless, the petitioner's more than five yearsj of progre~sive post-baccalaureate experience is 
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the petitioner has established that a waiver of the job offer r~uirement, 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 immi~ants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cohg., 1st Sess., 11 (1989). 
Supplement~ information to regulations ·implementing lhe 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 tfi.e "prospective national benefit" 
[required of aliens seeking to qualify as "except~onal.''] 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 bwn merits. 
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In reNew York State Dept. of Transportation (NYSDOT), i2 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 ment. Next, the petitioner must show lliat the proposed benefit will be national in 
scope. Finally, the petitioner establish that the alien will ~erve the national interest to a substantially 
greater degree than would an available United States workJ. having 
the same minimum. qualifications. 
While the national interest waiver hinges on prospective nltional benefit, th~ petitioner must establish 
that the alien's past record justifies projections of futili.re 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 intbtion behind the term "prospective" is to 
require future contributions by the alien, rather than td facilitate the entry of an alien· with no 
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demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
The USCIS regulation at 8 C.F.K § 204.5(k)(2) defines "exceptional ability" as "a degree of 
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expertise significantly above that ordinarily encounteredj' 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 ia 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 tr field of expertise. 
equivalent to a master's degree. See 8 C.F.R. §§ 204.5(k)(2) ana (3)(i)(B). Therefore, this observation does not 
materially alter the outcome of the petition. · I 
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The petitioner filed the Form I-"140 petition on February 17, 2012. Counsel stated that the petitioner 
is "capable of helping the nation improve the education of children in Science, Math {STEM)." 
STEM is an acronym for "science, technology, engineeridg and mathematics." 
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In an accompanying statement, the petitioner ·stated that, despite success as a teacher in the 
Philippines, she accepted a position in the United State~ in order to pay for the education of her 
three sons. She stated: 
In August 2006. I started my teaching career in America at 
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Despite challenges and culture shock I 
persevered .... [T]oward the end of my first yek, I was able to establish a strong 
bond with niy students, parents, and colleagues. 1\. result of the Benchmark test has 
showed significant improvement, over and beyond the expectations for at-risk 
students. But then came several incidents of suidde deaths from Filipino colleagues 
out of depression and pressure from work. And so when I heard that 
offer better oppdrtunity for green card sponsorship, 
I decided to apply and was hired. . . I . . 
Currently, I am a Mathematics teacher at ... During my 
first year, I was chosen to handle the Program in the school. Said 
program was designed to help students who are mathematically challenged and needs 
[sic] to pass the High School Assessment for Al~ebra and graduate. Eventually, I 
was chosen as the lead teacher of the program, cfuosen to do an educational training 
video now posed at website. Ntly supervisor for the program, 
has brought in visitors coming frmh nearby school districts and from . I 
to observe my classes .... [O]Uf group has decided to sign up for a · 
presentation in the next _ _ to be held in 
Florida, where I will be the lead presenter and hlghlightlng my educational training 
video. Eventually, the program. has ended becau~e of budget constraints .... I have 
closely worked with my administrators, superviso~s, guidance counselors, colleagues 
... and with parents to ensure the success of all ktudents not only in my classes but 
all students in the school. I have mentored neJr teachers ... [and] established a 
strong bond with students .... 
But my HI visa is expiring by June 181h of 2012. _ _ 
cannot anymore fulfill its promise to Js foreign teachers. Currently the 
- school board is debarred by Department of L~bor because of willful violations 
regarding hiring of foreign teachers. Despite dedicated years of service, why am I to 
suffer from what the school board failed to compl~? 
The Department of Labor invoked the debarment provilions of section 212(n)(2)(C)(i) of the Act 
against owing to certain immigration violation~ by that employer. As a result, between 
March 16, 2012 and March 15,2014, USCIS will not apbrove any employment-based immigrant or 
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nonimmigrant petitions filed by ? This debarment means that is, temporarily; 
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unable to file its own petition on the alien's behalf, and thu·s explains why labor certification is not 
an option in the short term. The inapplicability or unaviilability 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 thari 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 I authority to override or modify it. When 
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. the Dep~ent of ~abor has ~enali~ed a given ei?ployer !for abuse of the immigrat.ion ~roc~ss, i~ is 
not self-evidently m the natlo~al mterest to ctrcumveflt that penalty by grantmg, ImmigratiOn 
benefits directly to prospective foreign employees, without the safeguards built into the job 
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offer/labor certification process. Any waiver must rest on the petitioner's individual qualifications, 
rather than on the circumstances that (temporarily) preJent from filing a petition on her 
behalf. 
A copy of the petitioner's Maryland Educator Certificate, valid from _ 
lists two "Certification Areas" (environmental science and mathematics, both grades 7 -12), and lists 
the petitioner's "Highest Degree" as "Bachelor's." . 
The petitioner submitted copies of numerous documents -~sing from her work, including copies of 
photographs, evaluations, and certificates recognizing various achievements and her participation in 
various activities. These materials document the petitionJrr•s past career as an educator, but they do 
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not show that her work in the Philippines or in the United States has had an .impact beyond the 
districts where she served at any given time. The MO notes the petitioner's presentations at 
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national conferences, but the record does not establish that those presentations have had a lasting 
impact outside of the petitioner's own school district.! The subsequent cessation of , 's 
involvement in the program appears to ~foreclose future impact in that area. 
The petitioner submitted 29 letters from teachers, administrators, students, and others familiar with 
her work as a teacher. The witnesses praised the petitibner's abilities but did not show that the 
petitioner's work has been particularly influential beyond the local level. 
While education is in the national interest, the impact of a single schoolteacher in one elementary 
school would not be in the national interest for pwposes of ~aiving the job offer requirement of section 
203(b)(2)(B) of the Act. NYSDOT, 22 I&N Dec. 217 n.3. While NYSDOT referred specifically to 
"elementary school" teachers, the same logic applies to te~chers at. other levels; the use of the phrase 
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"elementary school" as an illustrative example does not imply otherwise. It cannot suffi~e for the 
petitioner to speculate about wider impact in the future. rl.e petitioner must establish a past history of 
demonstrable achievement with some degree of influence oh the field as a whole. See id. at 219 n.6. 
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On June 9, 2012, the.director issued a request for evidence, instructing the petitioner to submit 
documentary evidence' to meet the guidelines set forth irl NYSDOT. The director observed ·that the 
petitioner's qualifications as a teacher do not presumptivdly qualify her for the waiver. The director 
. I . 2 The list of debarred employers is available online at http://www.dol.gov/whd/immigration!HlBDebarment.htm 
(printout added to record February 27, 20 13). I · 
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acknowledged the petitioner's submission of copies of numerous certificates, but found that the 
petitioner had submitted nothing to show their significancb. The director requested "evidence of the 
full scope of influence [the petitioner's] teaching has hdd on that profession." The director also 
asked whether the petitioner's work had influenced teJching in multiple countries, or attracted 
national or international media attention. · I . 
In ;response, counsel justifiably stated that the director's references to international media set an 
unreasonably high standard. Counsel contended: "the mbre realistic mandate of the AAO decision 
in the Matter of New York State Dept. ofTransportatiod is whether the ·candidate's past record of 
achievement had more likely than not substantially equib[ped] her to fulfill the national interest." 
Counsel stated that the petitioner's "achievements have reached the level that render her fully 
capable of fulfilling the national interest in the MathemJtics education of the American students." 
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Counsel then re-listed the certificates submitted previously. Counsel asserted that certificates from 
the Philippines should not have less weight than certificates from the United States, but the director 
had not stated otherwise. I· 
The petitioner submitted copies of memoranda discussing some of her certificates. These 
documents refer to professional conferences and training ~essions. They do not demonstrate that the 
petitioner has had significant impact ~r influence on her field, for instance by sigilificantly shaping 
curricula in school districts other than her own or by intro:ducing improvements or reforms that have 
improved grades, attendance, or knowledge retention among students. 
The petitioner, in a new statement, stated: 
I have recently upgraded my teaching certificat~ which now certifies me in three 
areas of specialization (Chemistry, Environmental. Science and Mathematics). This 
is a very rare occurrence where a majority of thJ teachers are certified in only one 
area. This therefore makes me a versatile educatbr who can better contribute to the . f 
current thrust of American education in STEM. . . . Equipped with skills and 
knowledge in these fields, I can better handle m~ classes through inter-disciplinary 
lessons which can awaken the students' apJ>reciatibn of the STEM fields. 
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·A newly submitted certificate shows the same validity dates as the certificate submitted previously, 
but now it shows three certification areas instead of tWoJ and lists her highest degree as a master's 
degree. The certificate does not show the dates of these thanges. Any change that took place after . . I 
the petition's filing date cannot retroactively establish eligibility. An applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time of filing the benefit request. 
8 C.F.R. § 103!2(b)(l). USCIS cannot properly appro:ve 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'! Comm'r 1971). · . . . I · · .. 
The petitioner submitted no evidence to support her claim that her triple certification "is a very rare 
occurrence." Going on record without supporting dopumentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec: 190 (Reg'l · 
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Comm'r 1972)). Most importantly, certification in multiple subjects does not establish prior impact 
or influence on the field, nor does it readily demonJtrate prospective national benefit. The 
petitioner has nt;>t shown that her certification in multiple !subjects will significantly benefit students 
other than her own. As noted previously, exceptional ability, defined as "a degree of expertise 
significantly above that ordinarily encountered," is not cfu automatic or presumptive basis :for' the 
waiver. Therefore, the petitioner cannot qualify for the1
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waiver simply by listing credeQ.tials that 
many others in her field do not possess. 
I The petitioner submits a digital copy of"a film clip that shows [her] contribution in 
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_ initiative to raise [assessment test scores]. Through it airs 
review sessions covering topics and questions that are coiered in the state tests." 
The petitioner submitted additional letters and electronic mail messages, which, the petitioner 
claimed, "show that even visitors from other school di~tricts are brought to [her] classroom for 
observation." The messages in the record indicate that J"a few visitors from Baltimore" attended 
some of the petitioner's classes in 2007 and 2008 to learn "how the _ program works." 
of complimented the pe~tioner's performance and stated: "we are 
proud to hold you as one of of [sic] model classrooms." The record does not 
establish the extent to which the petitioner's classroom! subsequently served as a "model" in the 
program, or show that the petitioner designed the "model" aspects of the program 
(as opposed to following a blueprint created by others). 
A June 9, 2008 letter from of. reads, in part: 
[The petitioner] h:s been an active participant in lhe training and the teaching of the 
high school intervention progrdm in _ _ She 
has established a model classroom 
with strong rituals and routines; her students are 
truly 
engaged in learning mathematics. 
was so impressed with the teaching and learning in her classes that 
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we asked if we could videotape her teaching. "'f e developed a video to share with 
other teachers - in and thloughout the country. 
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Several PGCPS teachers also asserted that has nationally distributed video 
· footage of one of the petitioner's classes. Neither they! nor any official from 
indicated that the petitioner actually developed any ~pect of the . program. 
Rather, the available evidence suggests that selected the petitioner for the film 
because of her ability to demonstrate the plan, rather than her role in designing it. 
The director denied the petition on Oct()ber 27, 2012. The director acknowledged the intrinsic merit 
of the petitioner's occupation, but found that the petitionk had not established that the benefit from 
the petitioner's intended work for would be n~tional in scope, or that the petitioner had 
established a past history of impact or influence on the fiJld as a whole. 
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Counsel asserts: "E,_c.clusively and strictly enforcing the rudiments behind the New York State 
Department of Transportation Case to Highly QualifiJd Teachers is unjust, unreasonable and 
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damaging to the 'Best Interest' of the American Scpool Children." Precedent decisions are binding 
on all USCIS employees in the administration ofthe Act.jsee 8 C.F.R. § 103.3(c). Counsel cites no 
statute, regulation or case law .that would require or permit USCIS to disregard NYSDOT as it 
applies to school teachers. Counsel repeatedly refers to ~residential speeches and federal initiatives 
such as the No Child Left Behind Act (NCLBA), statihg that they demonstrate the "underlying 
urgency on this matter," but counsel identifies no speciJllegislative or regulatory provi~ions that 
exempt school teachers from NYSDOT or reduce its imp~ct on them. Counsel notes that Congress 
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passed the NCLBA "about three (3) years after" the iss1,1ance of NYSDOT, and that therefore 
"Congress has in effect . engraved the missing definitibn upon the concept of 'in the national . I , 
interest,' i.e., centered on the 'Best Interest of American School Children."' 
The assertion that the NCLBA is tantamount to a retrJction or modification of NYSDOT is not . I 
persuasive; the NCLBA did not amend section 203(b )(2) of the Act. In contrast, section 5 of the 
Nursing Relief for Disadvantaged Areas Act of 199~, Pub.L. 106-95 (November 12, 1999), 
specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to 
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create special waiver provisions for certain physicians. Because Congress not only can amend the 
Act to clarify the waiver provisions, but has in fact donejso iQ direct response to NYSDOT, counsel 
has not made a persuasive claim that NCLBA indirectly implies a similar legislative change. 
Counsel list~ previously submitted certifica~es, stating thal they constitute "overwhelming evidence'' 
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that the petitioner "has a past history of achievement with some degree of influence on the field of 
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math education as a whole." Counsel does not explain t:h}s contention. The certificates indicate that 
the petitioner orgairized functions at individual high school~ (such as the' at 
'• coached various competitions, and kerved as a "facili.tator/trainer" .at vario~ 
regional or. division workshops between 2002 and 2004.1 The lack of an explanation for how these 
activities (most of them local) show influence on the field as a whole is a significant ·omission. 
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Furthermore, the petitioner has worked for since 2008; several years before the filing date, and 
the record does not show how the petitioner's work therJ has produced benefits that are national in 
scope or will continue to do so in the future. 
Counsel states: 
• [T]he most tangible national benefit to be derived from a 'Highly Qualified 
Mathematics Teacher' is recreating a society lof responsible and values-driven 
citizens including a highly productive and well-balanced work force that would 
translate the current recession adversely 
affecting ithe United States of America into a . 
formidable economy again including national security. 
Counsel fails to explain how the actions of one mathemltics:teacher would contri~ute significantly 
to nationwide social reform and economic recovery ( ex'cept to speculate that one of her students 
may eventually become "a national figure such as a jPresident, a legislator, a member of the 
judiciary, a scientist, among others"). General assertions about the overall importance of education, 
·and the need for education reform, do not exempt every ~eacher from the job offer requirement. As 
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members of the professions (as defined in section 101(a)(32) of the Act), teachers are subject to the job . I 
offer/labor certificatio·n requirement set forth in sections 203(b)(2)(A) and (3)(C) ofthe Act. Likewise, 
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aliens of exceptional ability who ''will substantially benefit prospectively ... the United States" are 
also subject to the job offer provision of sec~ on 203(b )(2)(~) of the Act. Congress created no blanket 
waiver for teachers of math, science or. any other subject. It is clear from the statute, therefore, that an 
alien who works in a beneficial profession such as teadhing mathematics. is not automatically or 
presumptively exempt from thejob offer requirement, not/withstanding hypothetical conjecture about 
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what her students may achieve in the future. 
As i~ clear from a _plain readi~g ~f the sta~te, it was n9t the intent of Congress th~t every p~on 
qualified to engage m a professiOn m the Urn ted States should be exempt from. the reqwrement of a JOb· 
offer based on national interest. Likewise, it does not ap~ear to have been the intent of Congress to 
grant national interest 
waivers on the basis of the overall irhportance of a given prof~ssion; 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. 
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 sustainedthat burdbn. 
ORDER: The appeal is dismissed. . 
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