dismissed EB-2 NIW Case: Education

(b)(6)
DATE: 
IN RE: 
DEC 0 8 20g 
OFFICE: TEXAS SERVICE CENTER 
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: 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. § 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 instructions 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, 
��� erg 
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 Appeals Office (AAO) 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 with progressive post-baccalaureate 
experience equivalent to an advanced degree. The petitioner seeks employment as a middle school 
reading teacher for • ; she began teaching at 
in 2006. 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 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 short statement. She also stated that a "brief and/or additional 
evidence will be submitted to the AAO within 30 days," but the record contains no further submission 
from the petitioner. Therefore, we will consider the record to be complete as it now stands. 
Attorney previously represented the petitioner in this proceeding. There is, 
however, no evidence that Mr. participated in preparing or filing the appeal. The instructions 
to Form I-290B, Notice of Appeal or Motion, advise that attorneys must attach a Form G-28, Notice 
of Entry of Appearance as Attorney or Representative, to the appeal, as required by the regulation at 
8 C.F. R. § 292.4(a). The appeal does not include this form. The petitioner signed Form I-290B 
herself, and mailed H from her address. We will therefore consider the petitioner to be self­
represented, and refer to Mr. Reyes as "prior 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 
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NON-PRECEDENT DECISION 
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 the defined 
equivalent of 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 benefit the United States 
economically and otherwise .. .. " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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 (U SCIS)] believes it 
appropriate to leave the application of this test as fl exible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional ." ] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In re New York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Ac t. 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. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. /d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest c ann ot 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. I d. 
The 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; the y are not 
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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, hnmigrant Petition for Alien Worker, on June 22, 2012. 
Accompanying the petition was a statement from prior counsel, which reads, in part: 
In 2006, American education officials in Maryland handpicked fthe petitionerl and hired 
her to bring her extraordin ary skills to 
... Truly, there was a compelling reason why her employers had to bring her to the US 
from the Philippines in 2006. They wanted only the best educators to teach our 
American kids for the future of our nation. And in this regard, my client has provided 
exactly that and more. 
The record does not support prior counsel's claims regarding the specific circumstances of 
recruitment of the petitioner. The unsupported assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Prior counsel, in the introductory 
statement, made general assertions that the petitioner is a superior teacher, but did not explain how the 
petitioner meets the NYSDOT guidelines to qualify for the national interest waiver. 
Prior counsel stated that the petitioner "immediately made an impact in her new American classroom 
and soon garnered awards from the system, including an 
during the American Education week. Just recently, in 2011, she was given the 
by the school administrators." Recognition for achievem ents and 
contributions to the field can form part of a claim of exceptional ability u nder 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), but exceptional ability does not establish eligibility for the national interest waiver, 
because aliens of exceptional ability are subject to the job offer requirement under section 203(b )(2)(A) 
of the Act. 
Part icu lar ly significant awards may serve as evidence of the petitioner ' s influence on the field, but the 
petitioner has not shown the significance of the awards that she received. Awards from individual 
schools or districts are inherently local, and do not show that the petitioner's work has had a wider 
effect or impact. The body of the certificate issued by the Executive reads: 
In honor of your service as an educator in the Prince George's County Public School 
System 
The Office of the County Executive recognizes and recommends your hard work and 
dedication to the children of our County. I appreciate the knowledge and services 
you provide to the students of 
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This certificate is presented during American Education Week 2006. 
The general wording suggests that all educators received such certificates in 2006. 
The petitioner submitted letters from administrators, teachers, and students, praising her 
abilities and dedication as a teacher. Competency as a teacher is not sufficient to qualify the 
petitioner for the national interest waiver, because there is no blanket waiver for teachers. By 
statute, teachers are members of the professions (see section 101(a)(32) of the Act), and members of 
the professions are generally subject to the job offer requirement (see section 203(b)(2)(A) of the 
Act). 
Furthermore, the letters attested to the petitioner's impact at the local level. For example, 
a reading specialist at stated: 
When [the petitioner] began at the seventh grade reading 
scores on the Maryland School Assessment were at a dismal level of only 50.9% 
proficient . ... As a result of [the petitioner's] work, the scores increased more than 
25% in five years to a high of 77.3% proficiency in 2011. While there is still much 
work to do, it is imperative that [the petitioner] is here to help us continue this work 
toward the goal of ALL students reaching proficiency in reading. 
The petitioner has not shown that her work has affected test scores outside or that other schools 
have adopted methods that she created. The improvement cited in Ms. etter appears to be 
significant, but the petitioner has not shown how ranks alongside other schools in terms of test 
scores. 
The director issued a request for evidence on December 4, 2012. The director quoted from some of the 
letters, and stated that the petitioner had submitted "no corroborative primary ev iden c e" to show "the 
direct role [her] work has played in the field of Education as a whole." The director in struc ted the 
petitioner to "submit evidence to establish that [her] past record justifies projec tions of future benefit to 
the nation" (e mphas is in original). Regarding awards that the petitioner has received, the director stated 
that the petitioner must provide information to establish their significance. 
In response, the petitioner listed the certificates previously submitted, but provided no evidence or 
information regarding their importance. The petitioner also submitted documentation of training 
courses that she completed after she filed the petition. These materials do not distinguish her from other 
teachers; public school teachers in Maryland are required to take ongoing professional development 
courses as a condition for renewal of licensure.1 
1 See (added 
to record November 2U, 2U14). 
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Prior counsel stated: "With the strict implementation of In the Matter of New York Department of 
Transporta tion, the USCIS-Texas Service Center has determined National Interest Waiver self 
petitioner-teachers' evidences as insufficient and accordingly denied the applications." Prior counsel 
asserted that the director "has discretion to enforce said precedent," i. e. NYSDOT. Following published 
precedent decisions is not a matter of discretion. Rather, such decisions are binding on all USCIS 
employees. See 8 C.F.R. § 103.3(c). 
Prior counsel stated: 
[USCIS] has legal and factual bases to approve teachers' National Interest Waiver 
applications without offending the principles enunciated in the Matter of New York 
Department of Tr ansportation .... 
Firstly, Immigration Act of 1990 (IMMACT 90) which enacted ... the 'National 
Interest Waiver['] included 'educators' as among the targets of this legislation, [and] 
specifically 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.' 
(Emphasis in original.) As acknowledged elsewhere in the statement, the quoted language comes not 
from the statute itself, but from comments made by then-President George H.W. Bush as he signed the 
legislation. IMMACT 90 did in fact create the national interest waiver, and the president mentioned 
"educators" in his remarks, but it does not follow that a blanket waiver for educators was either the 
intent or the result of the legislation. The same statute plainly subjected professionals - including 
"scientists and engineers and educators" - to the job offer requirement. IMMACT 90 pr omotes the 
immigration of educators, but the default mechanism for doing so is the job offer requ irem ent and labor 
certification process, not the national interest waiver. 
Prior counsel noted that the NYSDOT decision provided no specific definition of the "national interest," 
and prior counsel contended that Congress filled this void with the passage of the No Child Left Behind 
Act of 2001 (NCLBA), Pub. L. 107-110, 115 Stat. 1425 (Jan. 8, 2002): 
Congress h::ts in effect remarkably engraved the missing definition upon the 
concept of 'in the national interest,' centered on the 'Best Interest of American 
School Children.' More importantly, U.S. Congress also provided the means to 
achieve this now defmed 'in the national interest,' i.e., 'Hiring and Retaining 
Highly Qualified Teachers.' Interestingly, "NCLB Act" also specified the 
'Standard of a Highly Qualified Teacher.' ... 
With this, [US CIS] now has a definite working tool in defining what is 'in the national 
interest' including the clear standard on what qualifications must be required from NTW 
[national interest waiver] teacher self-petitioners, as mandated by No Child Left Behind 
Act of 2001. 
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None of the phrases presented in quotation marks are actually quotations from the text of the NCLBA. 
The term "best interest," with respect to children, appears only in provisions relating to homeless 
students. The NCLBA contains no mention of the national interest waiver or any immigration benefits 
for foreign teachers, and it did not amend section 203(b )(2)(B) of the Act (which created the waiver). 
Prior counsel maintained that granting the waiver to the petitioner, as a highly qualified teacher, would 
be "honoring the Congressional intent in [the] No Child Left Behind Act of 2001." Prior counsel, 
however, provided no evidence that Congress intended to provide immigration benefits through the 
NCLBA. Statutory interpretation begins with the language of the statute itself. Pennsylvania 
Department of Public Welfare v. Davenport, 495 U.S. 552 (1990). Statutory language must be given 
conclusive weight unless the legislature expresses an intention to the contrary. Int 'f. Brotherhood of 
Electrical Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). Here, the 
petitioner has not established that Congress intended to exempt teachers from the job offer requirement, 
either through section 203(b )(2) of the Act, the NCLBA, or any other federal legislation. Congress's 
only direct statement on the matter has been to apply, not waive, the requirement There is no support 
for the claim that the NCLBA amounts to Congress's definitive statement on waiving the job offer 
requirement for "highly qualified teachers." 
The NCLBA did not amend section 203(b )(2) of the Act or otherwise mention the national interest 
waiver. In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-
95 (November 12, 1999), specifically amended the Immigration and Nationality Act by adding section 
203(b )(2)(B)(ii) to that Act, to create special waiver provisions for certain physicians. Congress not 
only can amend the Act to clarify the waiver provisions, but has in fact done so in direct response to 
NYSDOT. The petitioner has not established that the NCLBA indirectly implies a similar legislative 
change. Section 203(b)(2)(A) of the Act remains in effect, and therefore teachers, "highly qualified" or 
otherwise, remain subject to the job offer requirement. 
"Highly Qualified Teachers," as a class, play a significant collective role in implementing the provisions 
of the NCLBA. It does not follow, however, that every such teacher inqividually qualifies for special 
immigration benefits as a result, or that collective benefit justifies a blanket waiver for every such 
teacher, when the waiver otherwise rests on the specific merits of individual intending immigrants . 
Prior counsel cited a recent emphasis on science, technology, engineering and mathematics (STEM) 
education. This assertion addresses only the intrinsic merit of STEM education. Furthermore, the 
petitioner is not a STEM teacher, and prior counsel did not explain why "[t]he focus on STEM" should 
be interpreted as making the waiver available to reading/language arts teachers. 
Prior counsel claimed that the labor certification process would pose a "dilemma" because the 
petitioner's qualifications exceed the minimum requirements for the position, and "the employer is 
required by No Child Left Behind (NCLB) Law . . . to employ high ly qualified teachers." The 
petitioner did not show that these two considerations are incompatible. Section 9101(23) of the 
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NCLBA defines the term "highly qualified teacher." By the statutory definition, a "highly qualified" 
school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• demonstrates competence in the academic subjects he or she teaches. 
Prior counsel did not explain how the above requirements are incompatible with the existing labor 
certification process, and the petitioner submitted no evidence that the labor certification process has 
resulted in the widespread employment of teachers who are less than "highly qualified." (If the labor 
certification process has not caused such a result, then the objection is not consistent with the facts.) 
Prior counsel stated that the labor certification standards are inadequate because they "requ ire o nly a 
bachelor's degree," but that is also the minimum degree requirement for a highly qualified teacher (and 
the highest actual degree that the petitioner holds). 
Prior counsel requested "equitable consideration" as follows: 
[The petitioner] is firmly commited to continue teaching at However, 
is currently barred for a two-year period (i.e. from March 16, 2012 to March 15, 2014) 
from filing any employment-based immigrant and/or nonimmigrant petition ... arising 
from willful violations of the H-1B regulations at 20 C.F.R. Part 655, 
subparts H and I. .. . Thus, through no fault of her own, [the petitioner] would not be 
able to continue teaching in unless her E21 visa petition is approved, not to 
mention the fact that she has already firmly established a life here in the United States. 
By statute, the standard for the waiver of the job offer requirement is neither the petitioner' s desire to 
remain in the United States nor her prospective employer's temporary inability to petition on her 
behalf. The temporary debarment order (now expired) is not grounds for granting a permanent 
immigration benefit, and a declared intention to work for a debarred employer does not meet the 
NYSDOT national interest test. 
The director denied the petition on June 24, 2013, stating: "Eligibility for the waiver must rest with the 
petitioner's own qualifications rather tha[n] the position sought." The director concluded that evidence 
of "the petitioner's effectiveness and her ability to raise the students['] achievement level" establishes 
"the capabilities of the petitioner and her dedication to working with children," but does not establish 
that the benefit from her employment will be national in scope or of sufficient magnitude to warrant a 
waiver of the statutory job offer requirement. The director found that the petitioner had not docum ented 
any impact beyond the local level. 
On appeal, the petitioner stated that her "services are vital in the improvement of literacy at 
" and claimed that the school's Maryland State Assessment Reading scores had risen 
significantly from 2006 to 2013 due to her work. The petitioner stated: "These results are significant 
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Page 9 
contributions to the achievement of the state of Maryland [being] named as the Number One Public 
Schools System in the US for five consecutive years." The petitioner submits no evidence to support 
the claimed figures, or to show that the claimed improvement at played a significant part in 
Maryland's overall national ranking. Also, whatever her role at the petitioner has not shown that 
her work has had a significant impact outside that school. 
The petitioner asserts that many schools have difficulty filling vacancies for teachers in bilingual or 
English as a second language classes. The petitioner's earlier submissions did not place emphasis on 
such classes, and officials indicated that the petitioner taught a wide range of students, only a 
fraction of whom were native speakers of other languages. The labor certification process is the means 
by which the Department of Labor verifies that qualified United States workers are unavailable for a 
given position. Therefore, a claimed shortage of qualified workers is not grounds for waiving the job 
offer/labor certification requirement. See NYSDOT, 22 I&N Dec. at 218. 
The petitioner's statement on appeal does not address many of the issues raised in the director's denial 
notice. That statement, therefore, does not overcome the denial of the petition. The petitioner had 
indicated that a brief and/or additional evidence would follow, but the record does not contain any such 
supplement to the appeal. 
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. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from 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.