dismissed EB-2 NIW Case: Education

(b)(6)
DATE: JUl 0 2 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Ci tizenship and Immigr ation Se r v i ce~ 
Administrative Appeals Offi ce (AAO) 
20 M assachusetts Ave. , N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FTT .F· 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-preced ent decis ion. The AAO does not announce new constructi ons of law nor establish agency 
policy through non-precedent deCisions. If you believe the AAO incorrectly applied current Jaw 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, 
~~ 
lRon Rosenbe~J 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We will dismiss 
the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a lecturer/professor at the 
where she currently holds the title of "lecturer." 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 legal brief and documentation regarding her employment at 
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 benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29,' 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clear! y 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be consideted when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must 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 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 9, 2012. On Part 
6, line 3 of the petition form, the petitioner provided this description of her job: 
Teaches research and critical writing for Speakers of English as a Second Language 
and Portuguese as a Second Language. Teaches English as a Second Language 
(ESOL) and Portuguese Brazilian languages and culture. Also holds regular weekly 
office hours, developing curriculum in Brazilian Studies; organizing extra-curricular 
(b)(6)
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NON-PRECEDENT DECISION 
activities for students in Brazilian Studies; and participating m curriculum 
development for ESOL programs. 
A statement submitted with the petition explained the basis for the waiver application: 
Brazil is an emerging world power, with great economic potential. For the U.S. to 
maintain its global leadership position, it is paramount for the U.S. to develop and 
grow its relationship with Brazil. . .. To this end, our nation ' s ability to speak, read, 
and write Portuguese (the official language of Brazil) is essential. 
[The petitioner] is playing a key role in this endeavor by teaching the next generation 
of professionals the Portuguese language. Further, she is broadening the U.S. 
relationship with Brazil by bringing a study abroad program in Brazil to 
[The petitioner] . has made many important contributions to the field of education , 
enabled by her exceptional ability in the field .... 
Requiring labor certification would stifle [the petitioner ' s] ability to move 
significantly forward in education, with advancements being made almost daily. 
Labor certification requires the petitioning employer to define early the subject 
position and its duties. It does not allow for material changes to these definitions. It 
does not allow for the beneficiary to materially advance within the field. In order for 
[the petitioner] to benefit most significantly the field and the nation , she must be able 
to adapt to this rapidly advancing field and move to the environment most in needs of 
his [sic] abilities and skill-set. 
The last paragraph quoted above focuses not on the petitioner's work or its impact on the field, but 
on perceived flaws in the labor certification process itself. The national interest waiver is not simply 
a means for employers or self-petitioning aliens to avoid the inconvenience of the labor certification 
process. See NYSDOT , 22 I&N Dec. at 223. The claim that the petitioner ' s occupation is ill-suited 
to labor certification does not exempt her from the job offer requirement that, by statute , applies to 
members of the professions , including teachers at the university level. See sections 101(a)(32) and 
203(b )(2)(A) of the Act. The petitioner has not demonstrated that college instructors in general, or 
lecturers on Portuguese language and culture in particular , have been unable to obtain labor 
certifications owing to the dynamics of the field. Furthermore, the labor certification process would 
not permanently prohibit the petitioner from changing specific job duties at some future time. 
The petitioner's curriculum vitae lists one entry under the heading "Publications." Specifically , the 
petitioner listed published by 
the print-on-demand publishing house e book annears to he a n 
adaptation of her doctoral dissertation , 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
The petitioner submitted a printout of an electronic mail message dated March 22, 2012, indicating 
that the journal had accepted a manuscript by the petitioner. The manuscript is a review of 
the book by 
Dr. book/media review editor of . stated: "we at are very 
selective in the acceptance of submitted articles/reviews," and that the petitioner's book review 
passed "a rigorous, double-blinded peer-review." The review "is scheduled to be published ... in 
December 2012," and therefore had not appeared in print at the time of filing. 
The petitioner also submitted a conv of' published in the first issue of the 
open-access journal in 2012. According to annotations on the 
document, the piece is a "Full I:ength Researcfi. Paper ... developed for use in the course 'Politics in 
Higher Education,' in the Educational Leadership Master's Program." 
The petitioner submitted letters from former students who had taken undergraduate-level courses in 
Portuguese. stated: "I was able to apply the skills I acquired in [the petitioner's] 
class ... when I traveled to Brazil after taking her Portuguese course. Beyond my greatly improved 
ability to converse in Portuguese, [the petitioner's] lessons were instrumental to my understanding of 
the culture, language, and appreciation of the country." 
stated: "In [the petitioner's] class I was able to gain a strong foundation for my 
studies of Portuguese that have helped me throughout my college career as a political science and 
Latin American studies major." 
The satisfaction of individual students is not an indication of the petitioner's broader impact on the 
field of education. In an effort to establish such impact, the petitioner submitted letters from several 
individuals in her field. Dr. associate professor at chaired the petitioner's 
doctoral committee there. Dr. stated that the petitioner's "dissertation remains an 
important piece of the empirical research literature nationwide," and that she "has had extensive 
service in educational leadership, not only at but also in Brazil 
where she worked as an Assistant Principal at The 
petitioner did not submit documentary evidence, 
such as c1tat10n data, to contum the Importance or 
influence of her dissertation. The petitioner identified no widespread changes in educational policy, 
for instance, that have arisen as a result of her work. 
Professor chair of the Department of Languages and Linguistics at 
called the petitioner "one of the best full-time lecturers our department has," with "a stellar record as 
a teacher for both Portuguese and English as a Second Language." She did not discuss the 
petitioner's influence on her field beyond She stated that the petitioner "has ... been 
instrumental in creating and implementing a Study Abroad Program in Brazil, which she hopes will 
be available in the summer of 2013." Because the study abroad program was not yet in place when 
the petitioner filed the petition in 2012, there was, as yet, no indication that this program would 
influence the field or stand out in any way from similar study abroad programs offered by other 
colleges and universities. An applicant or petitioner must establish that he or she is eligible for the 
(b)(6)
NON-PRECEDENT DECISION 
Page b 
requested benefit at the time of filing the benefit request. 8 C.P.R. § 103.2(b)(1). USCIS cannot 
properly approve the petition at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ). 
Dr. later an associate professor at was a doctoral 
student at while the petitioner was studying for her master's degree there. Dr. stated 
that the petitioner "has achieved a great deal in the field of education that has and will contmue to 
greatly benefit students and other educators in the US." Dr. then described the 
petitioner's doctoral dissertation, conference presentations, teaching experience, and other 
achievements, stating that these accomplishments are "onlv the tip of the iceberg." In one of the 
listed items, Dr. stated: "As a reviewer for ... she has helped many scholars 
throughout the lJ.:S." At the time Dr. wrote this comment in April 2012, the petitioner 
had written only one review for which would not be published for another eight months. 
Commentary about the impact of the petitioner's reviewing work, therefore, was premature. 
Others who have worked with the petitioner in various capacities praised the petitioner's 
professional qualifications, but did not show that the petitioner's work has had an influence beyond 
the institutions where she has worked. For example, Dr. an assistant professor at 
stated that the petitioner "has become a valued member ot the department." He claimed that 
"[h]er work has had impact beyond the boundaries of our region," but did not elaborate on that point. 
Dr. associate professor at has "known [the 
petitioner] for over twenty years"; both studied in Brazil, in the early 1990s. She stated 
that the petitioner "has ... impacted the nation by teaching research and critical writing for speakers 
ofESL and Portuguese as a second language," and that the petitioner's book "is all the more relevant 
and impactful because [the petitioner] lives in an area of great diversity in the Southwest United 
States." Stating that the petitioner's work has had impact does not establish the nature or extent of 
that impact, and unsupported claims of impact have no evidentiary weight. Going on record without 
supporting documentary 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 Comm'r 1972)). 
Professor of the met the petitioner during her brief 
employment there in 2009-2010. Prof. cited the petitioner's "rare combination of skills" 
and stated: "[t]he demand 
for qualified, experienced English as a Second Language (ESL) teachers is 
enormous." He did not, however, indicate that the petitioner has had any impact in her field. 
The director issued a request for evidence on November 10, 2012, stating: "The petitioner must 
establish ... a past record of specific prior achievement with some degree of influence on the field 
as a whole." The director also stated that the petitioner's initial evidence "did not show how the 
beneficiary's contributions to her field are national in scope." 
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Page 7 
In response, the petitioner submitted a new statement protesting that the director did not discuss any 
of the petitioner's initial evidence. The statement addressed the "national scope" issue by stating 
that the petitioner's "previous and current 
students are applying their new language skills to benefit 
our national economy and security." In this way, the petitioner claims a share of the credit for her 
students' accomplishments, stating that her tutelage made those achievements possible. More 
persuasively, the statement noted the petitioner's publication and presentation of research, thereby 
disseminating her work beyond her own classroom. 
To establish the petitioner's impact on her field, the petitioner submitted another set ofletters. These 
writers asserted that the petitioner influences her field because she is a skilled and effective teacher, 
and there is a need for such teachers. The p((titioner submitted background evidence regarding the 
economic importance of Brazil and rising demand for Portuguese language teachers. The 
information about Brazil addresses the intrinsic merit of the petitioner's occupation, which the 
director did not question. Information about a shortage of teachers in the petitioner's field does not 
address the NYSDOT guidelines because, under that decision, a shortage of workers is not grounds 
for a national interest waiver. Rather, the labor certification process addresses worker shortages. !d. 
at 218. There is no blanket waiver for Portuguese teachers, based either on the importance of the 
occupation or on demand for qualified workers. Instead, the petitioner must establish how she, 
individually, stands out in her field in a way that justifies an exemption from the statutory job offer 
requirement that normally applies to workers in that field. 
More of the petitioner's former students attested that the petitioner prepared them for business 
dealings in Brazil. These individuals have benefited from the petitioner's instruction, but the record 
does not show that it is unusual, rather than expected, for college study to prepare students for future 
employment. 
The director denied the petition on December 6, 2013. The director acknowledged the intrinsic 
merit of Portuguese language instruction, but found that the overall importance of the petitioner's 
field is not, by itself, grounds for approving the waiver. The director stated: 
The recommendation letters state that the beneficiary is an accomplished 
Lecturer/Professor. However, these recommendation letters failed to detail how the 
accomplishments of the beneficiary are of unusual significance above those of other 
Lecturers/Professors in the field .... 
The additional evidence that was presented [in response to the request for evidence] 
makes references to the field as a whole ... [but] does not address how the 
beneficiary's employment at will be national in scope or how the U.S. would 
be adversely affected if the beneficiary was required to obtain a labor certification. 
The director also asserted that a shortage of qualified workers in the petitioner's field is not grounds 
for a national interest waiver, and that the petitioner's classroom instruction lacks national scope. 
(b)(6)
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Page 8 
On appeal, the petitioner submits an appellate brief setting forth the claim that the petitioner "has an 
extensive and unique background and set of accomplishments in the field of education." The brief 
describes the petitioner's past employment and lists her written and presented work, including some 
items that appeared after the petition's filing date. Listing these items does not establish their 
significance, impact, or influence on the petitioner's field. 
The brief contests the director's finding that the petitioner's work lacks national scope, because 
"[m]any of her students have gone on to take positions/studies of great importance across the 
nation." The brief cites three examples, all of whom were graduate students studying for master's 
degrees at the time they wrote their letters. Descriptions of how each student "plans to apply his 
skills in Portuguese" amount to speculation rather than evidence. Furthermore, the hypothetical 
future achievements of these students depend on their knowledge of the Portuguese language, not on 
the petitioner being the one teaching them. 
The petitioner's research and presentations present a better claim for national scope, because these 
efforts are disseminated through the field rather than confined to the classroom. In this way, the 
petitioner has established that her occupation produces benefits that are national in scope. 
Nevertheless, this second prong of the NYSDOT national interest test, like the first prong dealing 
with intrinsic merit, concerns the occupation in general rather than the petitioner in particular. To 
satisfy the third NYSDOT prong, it cannot suffice for the petitioner to establish the existence of 
published and presented work. She must also demonstrate the impact and influence of that work. 
The brief indicates that the petitioner's "accomplishments were in fact well above that minimally 
required for the position of Lecturer"; for instance, the petitioner holds a doctorate while the position 
(a non-tenure-track teaching post) requires only a master's degree. The issue, however, is not 
whether the petitioner possesses more than the minimum qualifications for the job. 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 field, and section 203(b )(2)(A) of the Act states that aliens of 
exceptional ability are subject to the job offer requirement. Therefore, the assertion that the 
petitioner possesses better qualifications than other lecturers does not demonstrate eligibility for the 
waiver. 
The appellate brief repeats the claim that labor certification requires "restrictions [that] would 
prevent [the petitioner] from using her full capabilities to benefit her students, her peers, and the 
national interest." The petitioner has not corroborated or elaborated on this assertion. 
The petitioner's appeal includes documentation regarding her position at and her recent 
activities, including an upcoming conference presentation and a second book review for 
Like previous exhibits, these materials establish activity but not influence. The record does not 
show that the petitioner has introduced significant new teaching methodologies, measurably affected 
economic relations with Brazil, or otherwise had an impact beyond what could be expected from a 
qualified teacher in her specialty. 
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Page Y 
The record establishes that Portuguese language instructors perform a useful function, and that the 
petitioner is well qualified for such work. The petitioner, however, has not shown that she, in 
particular, has had a significant impact or influence on her field, or that her continued employment in 
the United States would serve the national interest to an extent that would warrant a waiver of the 
job offer requirement that normally applies to the immigrant classification she seeks. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." Id. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from 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.