dismissed EB-2 NIW Case: Education

data deleted to 
prevent clearly unw arrmted 
invasion of personal privw4 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
SRC 09 093 5 1265 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative .4ppeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
5erry Rhew u 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1153(b)(2), a member of the professions holding an advanced degree. The 
petitioner seeks employment as a curriculum coordinator, English as a second language. The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of an alien employment 
certification, is in the national interest of the United States. The director found that the petitioner does 
not qualify for classification as a member of the professions holding an advanced degree and that the 
petitioner had not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
uphold the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(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. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. $ 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the equivalent of a master's degree. If a 
doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." Id. 
Page 3 
The petitioner holds a "Titulo de Licenciado" issued in 2001, evaluated as the equivalent of a 
 achel lor's Degree in Education. The petitioner also submitted her curriculum vitae listing experience - - 
from 1992 through 2002 and as a distribution 
ough 2007. This is the same experience listed on 
the uncertified ETA Form 9089 completed by the petitioner. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). Moreover, the 
regulation at 8 C.F.R. tJ 204.5(g)(l) provides that evidence of experience "shall be in the form of 
letter(s)" from current or former employers. The petitioner provided no evidence of her experience 
beyond her self-serving curriculum vitae and the uncertified ETA Form 9089 completed by the 
petitioner. 
Regardless, being a member of the professions does not entitle the alien to classification as a 
professional if she does not seek to continue working in that profession. See Matter of Shah, 17 I&N 
Dec. 244, 246-47 (Reg'l. Comrn'r. 1977). The petitioner in this matter seeks to work as a curriculum 
coordinator and, thus, must demonstrate that she is an advanced degree member of this profession. 
Moreover, as stated above, the regulation at 8 C.F.R. tJ 204.5(k)(2) provides that five years of 
progressive post-baccalaureate experience "in the specialty" is equivalent to an advanced degree. In 
light of the above, the petitioner's experience in an unrelated specialty, distribution management, 
cannot be combined with her baccalaureate to establish that she holds an advanced degree. 
On appeal, the petitioner submitted employment letters confirming her experience overseeing the 
manufacturing process of clothing at 
petitioner's husband, provided a letter affirming tha 
own clothing manufacturing business. I 
[The petitioner] used her university education in the field of curriculum and teaching 
to her work experience in clothing manufacture to develop her own business. She 
developed a curriculum to educate employees about the manufacturing processes in 
the fashion industry and about business practices. She wrote materials to instruct her 
employees in office procedures and in effective communication with customers. As a 
business owner and manager, she had full responsibility for the educational levels of 
her employees and developed instructional materials so that they could learn to do 
their jobs well. 
The record does not explain how developing occupational training manuals for clothing manufacturing 
employees incidental to running a manufacturing business constitutes the same specialty as working as 
a developer of course curriculum materials for English as a second language. 
.Finally, the petitioner submitted a letter from of the Euro-Brazil Regional 
Professional Technical Center assertin that the etitioner spent two months at the center "as a 
professor of fashion manufacture." provides the petitioner's duties, none of which 
include curriculum coordination for teaching En lish as a second language. Regardless, his letter only 
affirms two months of employment. Finally, asserts that the petitioner worked 
for five months teaching at the SENAI National Service for Industrial Learning of Apurcarana. 
Specifically, she covered topics in measurement, patterns, cutting, mounting, fitting and finalizing and 
analyzing the finished product. Once again these duties are unrelated to developing a curriculum for 
- - 
teaching English as a second language and, even combined with her experience with the Euro-Brazil 
Regional Professional Technical Center, do not amount to five years of progressive post-baccalaureate 
experience in the specialty of curriculun~ coordinator. 
As the petitioner has not documented five years of post-baccalaureate progressive experience in the 
field of educational curriculum coordinator rather than incidental duties preparing employee 
occupational training manuals, we affirm the director's conclusion that the petitioner has not 
demonstrated that she is a member of the professions holding an advanced degree. 
The petitioner has never claimed to qualify as an alien of exceptional ability and the director did not 
consider this classification. In the interest of thoroughness, the AAO will now consider the evidence 
under the provisions for that classification. The regulation at 8 C.F.R. § 204.5(k)(3)(ii) provides that 
the petitioner must submit evidence that qualifies under at least three of the following categories: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability 
(B) Evidence in the form of letter(s) from current or former empIoyer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
Page 5 
Where the petitioner fails to submit the requisite evidence, the proper conclusion is that the 
petitioner failed to satisfl the regulatory requirement of three types of evidence. See Kazarian v. 
USCIS, 2010 WL 7253 17, *6 (9th Cir. March 4,2010) (a decision pertaining to section 203(b)(l)(A) 
of the Act but containing legal reasoning pertinent to the classification in the current matter before 
us). If the petitioner has submitted the requisite evidence, U.S. Citizenship and Immigration 
Services (USCIS) makes a final merits determination as to whether the evidence demonstrates "a 
degree of expertise significantly above that ordinarily encountered." 8 C.F.R. 5 204.5(k)(2); see also 
Kazarian, 2010 WL 72531 7 at *3, *6. Only aliens whose achievements have garnered "a degree of 
expertise significantly above that ordinarily encountered" are eligible for classification as aliens of 
exceptional ability. 8 C.F.R. 5 204.5(k)(2); see also Kazarian, 2010 WL 725317 at *3. 
As discussed above, the petitioner's experience is not "in the occupation" for which she claims 
exceptional ability. Thus, the only category of evidence for which the petitioner has submitted 
evidence is her degree under 8 C.F.R. 5 204.5(k)(3)(ii)(A). Section 203(b)(2)(C) of the Act provides 
that the possession of a degree, diploma, certificate or similar award from a college, university 
school or other institution of learning or a license to practice or certification for a particular 
profession or occupation shall not by itself be considered sufficient evidence of exceptional ability. 
As the only category of evidence submitted by the petitioner is her degree, she cannot qualifl for 
classification as an alien of exceptional ability. Even if we considered her experience in a different 
occupation under our final merits determination, we are not persuaded that ten years of experience 
overseeing clothing manufacture, with its incidental duties of preparing occupational training 
manuals, is indicative of or consistent with a degree of expertise significantly above that ordinarily 
encountered among curriculum coordinators who actually work in that occupation. In light of the 
above, the petitioner has not established that she is an alien of exceptional ability. 
As the petitioner has not demonstrated that she is an advanced degree professional or an alien of 
exceptional ability, the issue of whether the alien employment certification process should be waived 
in the national interest is moot. Nevertheless, in the interest of thoroughness, we will examine that 
issue. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualify as "exceptional."] 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. 
Matter of New York State Dep 't. of Trtmsp., 22 I&N Dec. 2 15, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, it must be shown that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 1 7- 1 8. 
It must be noted that, while the national interest waiver hlnges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of fitwe benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. The inclusion of the term 
"prospective" is used here to require hture 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. Id. 
The addendum to the Form 1-140 petition provides the following job duties: 
Coordinate curriculum, course plans and methods of instruction for English as a second 
language for the Permanent Resident Aliens and Citizens of Brazilian background in the 
US. Courses to be distributed and implemented in the Brazilian-American community 
around the United States. 
The job location listed on the uncertified ETA Form 9089, Part H, is the Friendly Hand Ministry of 
Assembly of God. The record contains no evidence that this church is a distributor of English as a 
second language or other curricula and does not include a business plan explaining how the church 
intends to become a distributor of such materials. We must stress that unproven, untested ideas cannot 
be presumed to have substantial intrinsic merit. Rather, the substantial intrinsic merit must be 
documented. 
The director concluded that while the general field of curriculum coordination may have substantial 
intrinsic merit, the petitioner had not demonstrated that her activities in this field would have 
substantial intrinsic merit. On appeal, counsel asserts that English as a second language is vital to 
improving education for immigrant families. Counsel references the attached curriculum and 
concludes that it will "facilitate learning." At the end of his brief, however, counsel asserts that the 
curriculum being submitted represents "the kinds of curriculum materials to e developed and 
implemented by the alien." Thus, it is not clear that the materials submitted on appeal represent 
curriculum developed by the petitioner. Notably, much of the materials bear the logo for 
Page 7 
www.smartkids.com.br. The conversational materials, while bearing no website identifier, appear to 
contain "links" that suggest these materials also derive from the 1nternet.l The record contains no 
evidence that the petitioner is the developer of the materials on any website. If these materials are 
being presented as the type of useful curricula that the petitioner will develop, it is not clear how the 
existence of materials on the Internet that, according to counsel, "appeal to a wide audience throughout 
the United States," demonstrate that the development of new curricula at a local church is of substantial 
intrinsic merit. 
As the record does not suggest that the petitioner has any experience developing a curriculum for 
learning a new language, it would appear that the prospective duties discussed above were devised as a 
pretext to support a national interest waiver petition. As with job requirements, job duties with no good 
reason other than to justify the requirements for an immigration benefit are not always persuasive. CJ: 
De@nsor v. Meissner, 201 F. 3d 384,387 (5' Cir. 2000). Finally, merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. (D.C. 
Dist. 1990). In light of the above, the petitioner has not demonstrated that there is substantial 
intrinsic merit in developing new English language curricula for Portuguese speakers by an 
individual operating out of a local church with no experience teaching English as a second language 
or developing curricula for such a course. 
The director further concluded that the benefit would not be imparted on a national scale. On appeal, 
counsel asserts that the Brazilian population residing in the United States is spread out across the 
country. Once again, counsel asserts that the enclosed materials demonstrate the scope and appeal to a 
wide audience. We reiterate, however, that the materials submitted on appeal are not claimed to have 
been developed by the petitioner and, in fact, include the logo of a website that has not been shown to 
be affiliated with the petitioner. 
NYSDOT, 22 I&N Dec. at 217, n.3, provides several examples of occupations that fall within nationally 
important areas, such as services for the underrepresented, education and nutrition, but provide 
negligible impact at the national level. Significantly, it is not enough to conceive of a means whereby 
the petitioner's work could eventually have a national impact. To hold otherwise would render the 
national scope requirement meaningless. Rather, the petitioner must demonstrate that the proposed 
employment is within a framework that typically has such an impact, such as the alien in NYSDOT, 
who worked on the proper maintenance of bridges and roads already connected to the national 
transportation system. 22 I&N Dec. at 217. As stated above, the petitioner proposes to work at a 
1 Much of the conversational materials included in the curriculum submitted on appeal are from 
accessed April 1, 2010 and incorporated 
into the record of proceedings. The record contains no evidence that the petitioner is the developer of the 
materials on this website. 
Page 8 
local church with no documented history of disseminating curricula nationwide. Moreover, even if 
we considered the petitioner's history of developing occupational training materials, those materials 
had a purely local benefit for her employees. In light of the above, we uphold the director's finding 
that the petitioner has not demonstrated that the benefits of her work would be national in scope. 
Finally, it remains to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The director concluded 
that the petitioner had not demonstrated that she possesses qualities and attributes that are not 
amenable to enumeration on an application for alien employment certification and that she had not 
demonstrated her prior achievements that justify projections of future benefits to the United States. 
On appeal, counsel states that the petitioner has a "history of developing educational materials for 
Brazilian workers in a vocational setting. There is every reason to expect her to continue to be both 
creative and productive in the high quality of curriculum development to serve the Brazilian 
population." Counsel further asserts that language proficiency is "aimed at the workplace to enable 
the foreign-born worker to advance." Counsel concludes that the proposed employment "cannot be 
held by a person with less education, training or experience because such a person cannot perform 
the job duties requiring practical experience with Portuguese speaking learners in vocational 
settings." 
While counsel asserts that an individual with less education, training or experience could not 
perform the job, counsel misstates the relevant inquiry. Specifically, as stated above, 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. NYSDOT, 22 
I&NDec. at217-18. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualify for a national interest waiver. Id. at 
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique 
background." Special or unusual knowledge or training does not inherently meet the national 
interest threshold. The issue of whether similarly-trained workers are available in the United States 
is an issue under the jurisdiction of the Department of Labor. Id. at 221. 
If USCIS were to accept that the petitioner's bilingual ability warrants approval of the waiver, 
USCIS would need to approve the waiver for every alien from a non-English speaking country who 
proposes to develop English as a second language curricula. The petitioner has not established that 
Congress intended the national interest waiver to serve as a blanket waiver for all bilingual aliens 
intending to provide materials for teaching English as a second language. 
Moreover, the petitioner's experience providing vocational training is not persuasive. At issue is 
whether this petitioner's contributions in the field are of such unusual significance that the petitioner 
merits the special benefit of a national interest waiver, over and above the visa classification she 
seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. Id. at 2 19, n. 6. In evaluating the petitioner's achievements, we note that original innovation, 
such as demonstrated by a patent, is insufficient by itself. Whether the specific innovation serves the 
national interest must be decided on a case by case basis. Id. at 22 1, n. 7. 
The only educational materials in the record appear to be downloaded fiom the Internet and cobbled 
together. The record does not establish that these materials were developed by the petitioner or that 
they have been influential in the field of teaching English as a second language. Even if we were to 
consider the petitioner's occupational training materials, and we reiterate that the petitioner has not 
established that the ability to compile such materials predicts an ability to develop a successful 
curriculum for teaching English as a second language, the record contains no evidence that these 
materials were successful and influential in the clothing manufacturing industry. Other that a few 
months spent teaching and providing local benefits at those schools, the record contains no evidence of 
the petitioner's influence in the field of developing training materials. Ultimately, the petitioner seeks a 
waiver of the alien employment certification based on no documented past achievements and proposes 
benefits that are, thus, entirely speculative. Speculation as to future benefit without a prior track record 
of success cannot serve as a basis for a waiver of the alien employment certification. Id. at 2 19. 
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 fiom 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 alien employment 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. 5 136 1. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.