dismissed EB-2 NIW Case: Education

(b)(6)
DATE: 
DEC 0 5 2014 
IN RE: .Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
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 po licy 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 instr uct ions at 
http:Uwww.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, 
Jf!:�trative Ap�ls Offi� 
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 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 college/university instructor. At the time she filed the petition, the 
petitioner was a communication studies instructor at 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. 
The director also found that the petitioner had failed to submit documentation required as part of the 
waiver application. 
On appeal, the petitioner submits a statement, asserting that the director did not fully consider the 
evidence submitted in support of the petition. 
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 substantial! y 
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, but found that the petitioner had not established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest, or that the petitioner had properly 
applied for the waiver. 
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The regulation at 8 C.P. R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. Form 
ETA-750B is now obsolete, but sections J, K and L of the successor form, ETA Form 9089, 
Application for Permanent Employment Certification, fulfill the same purpose. The petitioner's 
initial submission did not include either form. The director issued a request for evidence (RFE) on 
October 17, 2013. The director instructed the petitioner to "submit Form ETA-750B ... or Form 
ETA-9089 ... Parts J, K and L." The petitioner responded to the RFE, but did not submit either of 
the requested forms. 
In the denial notice, datedApril 25, 2014, the director stated: "the petitioner did not submit a Form 
ETA-750B (or ETA Form 9089, Parts J, K, and L) as requested in the RFE. Therefore, since the 
petitioner did not submit this required evidence, Form I-140 must be deni ed. " The petitioner, on 
appeal, does not address this finding. We therefore affirm the finding that the petitioner did not 
properly apply for the national interest waiver. Because the director also issued a separate finding 
on the merits of the petitioner's waiver claim, we will address those merits below. 
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, 10 I st Cong., 1st Sess., 11 (1 989). 
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 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 "excepti 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 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 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. !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. !d. at 217-18. 
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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 "prospecti ve" 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 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 May 14, 2013. 1 In an 
accompanying statement, the petitioner stated: 
I [seek] to continue my research and policy advocacy in education administration and 
student mentorship initiatives. Recent financial concerns in higher education . . . 
have created extraordinary challenges for colleges to deliver on the promise of higher 
education .. .. 
[I]t is imperative that we serve our primary constituents honorably by first admitting 
that we are currently unable to adequately meet their needs and engage in a process of 
inquiry to recommend several possible solutions, to curb academic inflation, and 
expand the skill set of the workforce in a cost effective and sustainable manner. 
These may sound like lofty goals but I have in the past two years and eight months 
dedicated my time effort and energy to collect data, rally stakeholders, and meet the 
needs of my current students to achieve this goal. ... 
[S] everal colleges have decided to further decrease the hours of contingent or adjunct 
faculty members to ensure they do not qualify for benefits. This means there will be 
an additional direct cost to the federal budget from institutions of higher education 
wishing to avoid adequate compensation. In addition it will then become more cost 
1 On Part 4, line 5 of Form I-140, the petitioner acknowledged that she is in removal proceedings. Her initi al submission 
included a copy the February 26, 2013 denial notice from a Form I-130, Petition for Alien Relative, that her U.S. citizen 
spouse had filed on her behalf. In that decision, the Field Office Director, Irving, Texas, stated: "the Service concludes 
that [the] marriage is one entered into so that the beneficiary can obtain an immigration benefit." This finding appears to 
invoke section 204(c) of the Act, 8 U.S.C. § 1154(c), which prohibits the approval of any petition for an alien who has 
entered into a marriage with a citizen or permanent resident of the United States, or attempted or conspired to enter into 
such a marriage, for the purpose of evading the immigration laws. Because the petition is not otherwise approvablc, we 
need not make a formal 204( c) determination at this time. 
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NON-PRECEDENT DECISION 
effective to be a student than a faculty member, as graduate students receive health 
benefits and in most cases higher rates of compensation than contingent faculty, 
further driving academic inflation and possibly impacting student outcomes in both 
the short and long term. 
I have included independent data demonstrating the scope of this problem and pray 
that you afford me the opportunity to continue this work. I intend as a rhetorical act 
to complete this seminal work, before completing my doctoral degree, as a means of 
demonstrating the problem of academic inflation. Upon completion, the findings will 
be sent to the United States Department of Education, as well as state and federal 
legislators to facilitate the implementation of effective policies. 
The petitioner stated her intention to furnish her findings to government authorities, but she did not 
indicate what those findings were, or establish that she has already devised a solution that has proven 
to be effective. The petitioner submitted a three-page overview of the ' through 
which the petitioner seeks to provide "[l] ong term solutions to academic inflation and sustainable 
policy guidelines " and "[l]ong and medium term solutions to student debt crisis and a new 
mentorship model, " among other benefits. The document described all four phases of the initiative 
in the future tense, indicating that, at the time of its writing, Phase I had not yet begun. 
Background materials described the situation facing contingent faculty, but did not establish what 
impact, if any, the petitioner has had on this field. 
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. P.R. § 103. 2(b)(l). 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). Therefore, the petitioner's stated intention 
to seek a still-unknown solution at some future time is not a sufficient basis for approving the 
national interest waiver. Furthermore, the petitioner seeks an employment-based immigrant 
classification, but she did not explain how this research would relate to ongoing employment as a 
university instruc�or. 
As evidence of earlier graduate-level research projects, the petitioner submitted a paper with the title 
� � 
. but the petitioner did not establish the impact of 
this research or establish any connection between her past work and her intended future initiative. 
Other submitted materials, such as copyright notices for music and poetry, have no demonstrated 
relevance to the matter at hand. 
The petitioner submitted several letters in support of the petition. Dr. is a professor 
and executive dean at J where the petitioner taught from August 2010 to August 
2011. Dr. stated: 
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[The petitioner seeks to] continue her research and policy advocacy for Higher 
Education funding and student success ... . 
Unlike other adjunct faculty members who may become dissatisfied with limited 
earning potential and the responsibility of caring for widely diverse groups of 
students, [the petitioner's] passion is repairing the system by creating public 
awareness to drive funding opportunities and connecting stakeholders on multiple 
levels. She is currently working on proposals for the United States Department of 
Education and The Equity and Excellence Commission to provide solutions to serious 
funding and operational concerns. 
Dr. went on to describe the importance of the problem, but not the petitioner's research or her 
proposed solutions. A solution may well serve the national interest, but an unfinished attempt to find 
such a solution does not warrant permanent immigration benefits. 
who identified herself as "a college professor " but provided no other details, stated 
that the national interest waiver "will allow [the petitioner] to perform significa[nt] research 
examining major labor issues within the higher education system. " She did not describe the 
petitioner's existing research on the subject, or claim that the petitioner has done any such research. 
The remaining letters are from individuals who attested to the petitioner's personal character, but did 
not address the stated grounds for seeking the waiver. These individuals did not claim expertise or 
employment in education or related fields; one individual is " 
" and another is "a corrections officer. " 
In the October 17, 2013 RFE, the director acknowledged the intrinsic merit of the petitioner's 
intended occupation, but found that the petitioner had not shown that her intended future work met 
the remaining two prongs of the NYSDOT national interest test. The director also instructed the 
petitioner to "submit a letter of proposed employment from a U.S. employer, a contract or a 
statement detailing how the [petitioner] intends to continue [her] work in the U.S." This request was 
justified because the petitioner had specifically stated her intention to work at a "college [or] 
university, " an arrangement which necessarily would require an institution willing to employ her. 
In response, the petitioner stated: 
As an advanced degree holder, faculty member, doctoral candidate, and research 
assistant, I have been working on a few large projects of national interest 
concurrently. Two of the projects will impact over 50 million Americans, and are in 
the initial stages of development. The first of the two issues of national interest is the 
expansion of bilingual education paradigms to meet growing demand in the domestic 
and international markets .. .. My work will help educators identify and mentor 
students, which will produce millions of dollars in profit ... for decades to come .... 
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The second project of national interest is. the contingent labor trend in higher 
education, which diminishes the effectiveness of faculty and student interactions. 
This project will impact thousands of American faculty members and over 30 million 
students, and is in its initial stages of pre-fundi�g development. .. . 
Vulnerable intellectual property rights make it difficult to divulge the initial phase of 
my inquiry .... [T]hese projects will eventually gain funding, with substantial private 
and public sector applications. 
The petitioner had not previously mentioned the bilingual education project. The pet1t10ner 
submitted materials showing that ' accepted the petitioner into a doctoral 
program in June 2013, a month after she filed the petition. Although many graduate students pursue 
ancillary employment, graduate study itself is not employment or a basis for employment-based 
immigration benefits. As with her initial statement, her RFE response statement referred not to any 
project with known, proven results, but to preliminary research, with no evidence to support the 
petitioner's predictions about the impact that her future work will eventually have. 
Although obtaining research funding would not, by itself, establish eligibility, the petitioner did not 
claim even to have reached that preliminary stage, instead asserting that her "projects will eventually 
gain funding, " without identifying the funding sources or documenting their agreement to provide 
those funds. The petitioner's waiver claim rests not on the results from any completed research 
project, but on speculation that projects now at the preliminary stages will eventually produce 
important results. The petitioner established no past track record of influential research to justify 
these conclusions about her future work. 
The director denied the petition on April 25, 2014. The director listed various exhibits that the 
petitioner had submitted with the petition and in response to the RFE. The director concluded that 
the petitioner had established the intrinsic merit of her intended employment, but had not shown that 
its benefit would be national in scope, or that the petitioner had established a record of prior 
achievement that would support her claims of future benefit to the United States. The director 
concluded that only the petitioner's own students would directly benefit from her work as a teacher. 
On appeal, the petitioner states: 
In this case the project is the original ongoing work of the [petitioner], and it is not 
possible for another U.S. worker to do this work without violating the [petitioner's] 
intellectual property rights ... . Additionally, the assertion that only students in the 
state of Texas would benefit from her extraordinary skill is flawed, since millions of 
American students around the country ... would benefit from the proposed system 
that this project seeks to implement. 
The petitioner adds that it would "create undue hardship " for her to seek to implement the project 
through an employer, because this, too, would compromise her intellectual property rights. The 
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Page 8 
petitioner has not described "the proposed system that this project seeks to implement," and there is 
no evidence that this system would, in fact, effectively mitigate the problems that it seeks to address. 
The petitioner contends that the director failed to consider that her work will benefit "millions of 
American students, " but without evidence that her work has benefited anyone, this claim is entirely 
speculative. 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' I Comm'r 
1972)). 
The petitioner states: 
According to United States Census in 2009, only 10. 3 percent of the U.S. population 
had a graduate degree or higher. As a holder of an advanced degree from an 
American institution, [the petitioner] has demonstrated that she is an immigrant with 
extraordinary ability. Additionally her community engagement, submitted 
recommendations, and awards demonstrate that she is performing at a level that is 
above average. 
The petitioner seeks an immigrant classification that presumes an advanced degree; she cannot use 
that same degree as evidence of "extraordinary ability " within the classification. Section 
203(b)( l )(A) of the Act established a separate immigrant classification for "[a]liens with 
extraordinary ability ... which has been demonstrated by sustained national or international acclaim 
and whose achievements have been recognized in the field through extensive documentation." The 
petitioner did not seek that classification on Form 1-140, and the record does not contain extensive 
documentation of sustained acclaim. 
As for the claim that "she is performing at a level that is above average, " 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. Section 203(b )(2)(A) of the Act states that 
aliens of exceptional ability are subject to the job offer requirement; they do not automatically 
qualify for the national interest waiver. Thus, even if the petitioner had established "above average" 
performance, and thus exceptional ability, she would still need to demonstrate that she qualifies for 
the waiver she seeks. 
The petitioner contends that, as a doctoral student, "she is an exemplary immigrant worthy of further 
consideration leading to acceptance of the petition." The petitioner seeks an employment-based 
immigrant classification. Graduate study is not employment, but rather temporary training in 
preparation for future employment. The law makes separate provisions for nonimmigrant status 
during graduate study; it is not a basis for permanent immigration benefits. Also, as noted above, an 
advanced degree, itself, is not a basis for granting the national interest waiver. Therefore, it stands to 
reason that pursue of such a degree is, likewise, not sufficient to establish eligibility for the waiver. 
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Page 9 
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 influ�nce 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 21 9, 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 alie�. 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, with each considered as an independent and 
alternate basis for the decision. 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.