dismissed EB-2 NIW Case: Education

(b)(6)
·-· 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 
DATE: MAR 1 8 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pur~uant 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 fmd the decision of the Administrative Apperls Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your c~se must be made to that office. 
If you believe the AAO inappropriately applied the law in leaching its decision, or you have additional 
information that you wish to have considered, you may file a lmotion to reconsider or a motion to reopen in 
adcordance 
with the instructions on Form I-290B, Notice ofj Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
I ' 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that th~ motion seeks to reconsider or rbopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals. Office 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion to reconsider the dbcision, which the director dismissed. The 
matter is now before the Administrative Appeals Office (kO) on appeal. The AAO will dismiss the 
appeal. 
The petitioner seeks classification under 
section 203(b)(2) of the Immigration and. Nationality Act (the 
Act), 8 U;S.C. § 1153(b)(2), as a member of the profcl,sions holding an advanced degree. The 
petitioner seeks employment as an elementary school tbcher for 
. , Maryland. At the time she filed the peiition, the petitioner worked at 
College Park, Maryland. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certificati0n, is in the national interest of the United 
I 
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 rlot established that an exemption from the 
requirement of a job offer would be in the national inter~st of the United States. In dismissing the 
petitioner's motion, the director added a finding that thb petitioner had not shown that her work 
presents a benefit that is national in scope. 
On appeal, the petitioner submits a brief from counsel. 
Section 
203(b) ofthe 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 
I 
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 
I 
the national interest, waive the requirements oflsubparagraph (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 or its defined equivalent. The sole issu~ 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, 
Co~~ess did not provi~e _a specific definition of "il). the! natio~al interest." The Co~ttee _on the 
Judtctary merely noted m rts report to the Senate that the commtttee had "focused on national mterest 
I 
(b)(6)
Page3 
by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep: No. 55, lOlst cdng., 1st Sess., 11 (1989). 
Supplementary infunnation to regulations implementing ~he Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this tes~ as flexible as possible, although 
clearly an alien seeking to meet the [national inte~est] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
. I 
· [required of aliens seeking to qualify as "exceptional."] The burden will rest with . 
I 
the alien to establish that exemption from, or waiver ot: the job offer will be in the 
national interest. Each case is to be judged on its bwn merits . 
. I 
In reNew York State Dept. of Transportation (NYSD01i), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considefed when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of 
·substantial intrinsic merit. Next, the petitioner must show jthat the proposed benefit will be national in 
scope. Finally, the petitioner establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States workclr having the same minimum qualifications. 
While the national interest waiver hinges on prospective Jational benefit, the petitioner must establish 
that the alien's past record justifies projections of tutke benefit to the national interest. The 
petitioner's subjective assurance that the alien wil~ in tHe futufe, serve the national interest cannot 
suffice to establish prospective national benefit. The iniention behind the term "prospective" is to 
require future contnbutions by the alien, rather than t6 facilitate the entry of an alien with no 
I 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defities "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encounteredj' in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as Ia member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver jfst by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or ner field of expertise. 
When the director dismissed the petitioner's motion to rbnsider, the director stated: ''There is no 
appeal to this decision." The director cited no regulatod support for this assertion. The petitioner, 
through counse~ filed an appeal anyway, and the AAO will accept the appeal. 
Because the petitioner appealed the dismissal of the motio~ rather than the initial denial ofthe petition, 
the appeal must address that dismissal before the AAOj will address the merits of the underlying 
petition. In this instance, the grounds for dismissal of the motion are closely linked to the grounds for 
the earlier denial; both concern the national scope of thJ benefit arising from the petitioner's work. 
Therefore, in this appellate decision, the AAO will bonsider the merits of the petition; such 
I 
(b)(6)
Page4 
consideration is effectively identical to consideration of the motion to reconsider and the director's 
dismissal thereof. 
The petitioner filed the Form I-140 petition on September 28, 2011. In an accompanying statement, 
counsel stated: 
Briefly, the merit of (the petitioner's] request for National Interest Waiver is based on 
[her post-baccalaureate experience] equivalent [to !an] advanced degree, her extensive 
teaching experience and her commitment to developing new ways of educating kids 
through that she wrote und~ the commission of the Australian 
government. One of the most notable modules she authored under the program 
was for 3rd gra~e and 4th grade students, who had 
extreme difficulties reaching learning centers in tpe Philippines du.e to geographical 
hindrances or economic limitations. By implementing the module she expertly created, 
these less-fortunate kids were able to receive quality education from a distance without 
leaving their hqmes. I 
-------[The petitioner's] remarkable work with the is still being 
used today in the Philippines and remains as her mbst remarkable legacy - one that she 
intends to continue in the United States, whether a~ in 
Maryland where she currently works, or anywher~ in the country where difficulties in 
the delivery of quality education are rampant. 
(Counsel's emphasis} The petitioner described the conditio"ns that led to the creation of the 
distance learning program: 
Some learners in the Philippines especially in Mindanao are living in high mountains. · 
There is no school and teachers in those high and ~angerous mountains. The children 
living in those areas have to walk for hours just tojgo to school in the lowlands. Most 
of these children take long walks without slippers and meals crossing rivers, valleys, 
mountains and boulders of rocks, not to mention the hot scorching sun or the sudden 
flash floods that endanger their lives but they endhre all these with just one desire, to 
have an education, to be educated. . .. With th~ help of the Australian government 
they1 put up a big project called ... In this 
· project they hired the best teachers and I am one df those teachers that were chosen to 
write modules for these learners .... Until now the~ are still using it. 
Certificates from various sources confirm the. petitioner'l work as a for the Basic 
Education Assistance for Mindanao program. The doc~ments do not indicate that the petitioner 
played ariy other role in the inception or implementatio~ of the program, or establish how writing 
modules for the distance learning program significant}~ differs from a teacher's routine duty of 
creating lesson plans. 
1 The petitioner did not specify who "they" were. 
(b)(6)
Page 5 
It is significant to inquire how the petitioner's past work on behalf of students who dwell in remote, 
I 
mountainous regions will affect her future ability to benefit, prospectively, the United States. 
Regarding the assertion that the petitioner "intends to! continue" her ''work with the 
. 
. . · at " the petitioner did not submit evidence 
that comparable "difficulties in the delivery of q~ality Jtucation are rampant" in _ 
or elsewhere in the United States. Going on recoJI without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proo
1
f in these proceedings. Matter of Sojjici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTredsure Craft of California, 14 I&N Dec. 190 
(Reg'l .Comm'r 1972)). The unsupported assertions of couhsel do not constitute evidence. See Matter 
of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 
I 
1983);'Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 ~BIA 1980). 
I 
The petitioner submitted several letters from teachers and administrators who have worked with the 
petitioner, as well as parents (and one grandparent) ofiher students. The witnesses praised the 
petitioner's work in varying levels of detai~ but almost none of them indicated that the petitioner's 
past work has had a significant impact beyond the schoqls where she has taught. An exception is 
kindergarten grade level chair at who stated that the petitioner "created the 
expansive scenery for a Chinese Crane dance the Head Start and Prekindergarten students 
performed. The Chinese Crane dance performance imd [the petitioner's] art work received 
international attention." did not describ¢ the nature of the claimed "international 
attention." The petitioner herself had stated that 'has a sister school in China," and Sunmi 
Ahn, another teacher at _ stated that the school hblds "Community Day, which is a yearly 
event of partnership with schools in China." The recJrd does not document the "international 
attention" attributed to the dance performance, or shdw that such attention went beyond the 
community in China that houses sister school. . 
The director issued a request for evidence on March 20, 2012, instructing the petitioner to submit 
evidence to meet the NYSDOT guidelines. In response, counsel cited a study showing that special 
education teachers "shift careers" and move to general :education, and therefore "[t]he protection 
afforded for US workers enshrined in the labor certification process will not in any way be jeopardized 
by grant of waiver in favor of' the petitioner. The statutoty standard is that the waiver will serve the 
national interest, and counsel's observation does not addres~ that standard. 
The petitioner's initial submission showed that she possessls certification in special education (among 
other areas), but it is significant that the ·initial statemenis from counsel and the petitioner did not 
mention special education at all. Letters from teachb and administrators likewise did not refer 
I 
to the petitioner as a special education teacher. Counseljs statement in response to the request for 
evidence, therefore, represents a very significant shift in emphasis. A petitioner may not make material 
changes to a petitiop. that has already been filed in an effort to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummil 22 I&N Dec. 169, 175 (Conim'r 1998); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Co~'r 1971), which require that beneficiaries 
seeking employment-based immigrant classification must P'Pssess the necessary qualifications as of the 
filing date of the visa petition. j 
Counsel contended that the labor certification proces ''would not meet the objective of the 
employer to hire highly qualified teachers pursuant I to No Child Left Behind." Section 
(b)(6)
Page6 
1114(b)(1)(C) of the No Child Left Behind Act, 20 U.S.C. § 6314(b)(1)(C), dictates that "[a] 
schoolwide 
program shall include ... [i]nstruction by hi~hly qualified teachers." The regulation at 
34 C.F.R. § 200.56 defines the term "highly qualified teacher." Counsel did not discuss the 
regulation or Maryland's state-specific requirements, orj cite any evidence to show that the labor 
certification process does not permit the hiring of "highly qualified teachers." If, by law, a teacher 
must be "highly qualified," then a teacher who does ndt meet the applicable requirements is not 
"minimally qualified." Rather, that teacher is underq~alified or unqualified. Counsel has not 
shown that the labor certification process has forced or any other Maryland jurisdiction to 
hire teachers who do not meet the requirements of "highly qualified teachers." Rather, because 
"highly qualified" is the statutory standard for such teadhers, that term appears to be functionally 
equivalent to the term "minimally qualified" for purposes of labor certification. 
Counsel claimed that it is impractical or impossible to compare the petitioner to other teachers: 
Even if for instance that the 'be~eficiary's contri~ution have [sic] been significantly 
greater than the other workers in the field' nebds to be demonstrated, it is our 
respectfully [sic] manifestation that no less thJn the United States Constitution 
prevents [the petitioner] from obtaining informati6n of her colleagues regarding their 
credentials to determine what contribution they liave accomplished for purposes of 
· comp~ing whether her con~ributions ar~ ~eater jthan. those ot?er .workers. H~ce, 
even If the burden of proof IS on the petitioner, tnere IS no obligation to do so smce 
the supreme law of the land protects every citizen's right to privacy and thus 
accordingly restricts her from obtaining same. 
Clearly this is not the case; counsel cites no judicial fmding that overturned or limited NYSDOT 
based on privacy concerns (or for any ·other reason)., Counsel's contention rests on the false 
assumption that the NYSDOT guidelines amount to little 
1
more than an item-by-item comparison of 
an alien's credentials with those of qualified United States workers. The key provision, however, is 
one to which counsel has paid little attention: the petitioder must establish a record of influence on 
the field as a whole. To do so does not require an invasivb review of other teachers' credentials. 
The director denied the petition on August 15, 2012, statJg that the petitioner had not addressed the 
NYSDOT guidelines. In the subsequent motion to reopen, bounsel abandoned the emphasis on special 
education first expressed in the response to the requedt for emphasis. Counsel stated that the 
petitioner's "request for waiver ofthe labor certification is bremised on her advanced degree of Master 
of Arts in Educational Administration. She also has mote than ten (10) years of experience. [The 
I 
petitioner's] awards were also submitted." Degrees, experience, and recognition for achievements and 
I 
contributions are all elements of a claim of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) 
and (F~, resp~i~el~. Thus, counsel essentially\~laims thatjthe, petition~ m~ts a w~iver as an alien of 
exceptional ability m her field. ·As noted previously, exceptional ability m the sciences, the arts or 
business is not sufficient to warrant the national interdt waiver. The plain wording of section 
203(b )(2)(A) of the Act indicates that aliens of exceptiorilil ability are, by default, subject to the job 
offer requirement (including labor certification). Counsel tepeats this assertion on appeal, necessarily 
with the same result. J 
(b)(6)
Page? 
Counsel stated that the students of would suffer "a clear disadvantage, injustice and prejudice" 
if the petitioner "is terminated from her duties as a 'Highly Qualified Elementary teacher."' Counsel 
stated: ''her assigned school 
has already tried and tested the abilities of [the petitioner] and apparently, 
her school would not even consider risking the best interes't of the students for any other U.S. worker, 
either applying on their own or in response to the labor cbtification process." The record offers no 
support for this speculative rendition of the school district's hiring decision. 
The director dismissed the petitioner's motion on October 2!4, 2012, stating: 
. I 
USCIS stands by its initial decision. In addition, USCIS inadvertently omitted its belief 
that your work is not national in scope. · Ma~ter of New York State Dept. of 
Transportation, 22 I&N Dec. 217, n.3, states, in pertinent part, that ''while education is 
in the national interest, the impact of a single schdolteacher in one elementary school 
would not be in the national interest for purposes o:f waiving the job offer requirement 
of section 203(b )(2)(B) of the Act." This is because your occupation as an Elementary 
School teacher will produce only local benefits. Thus, USCIS concludes that the 
proposed benefit would not be national in scope. 
The director also rejected the assertion that federal legislation such as the No Child Left Behind Act 
. requires users to grant the national interest waiver to schobl teachers. 
On appeal from the director's second decision, counsel aglin cites the No Child Left Behind Act and 
I 
other federal statutes and initiatives, stating that they highlight ''the Urgent Need for Highly Qualified 
Teachers." In this way, counsel conflates the national ithportance of "education" as a concept, or 
"educators" as a class, with the impact of one teacher. THe undeniable importance of education as a 
whole does not imply that Congress has indirectly exemptbct teachers such as the petitioner from the 
job offer requirement. 
Counsel states: 
[T]he most tangible national benefit to be derived from a 'Highly Qualified 
Mathematics Teacher' is recreating a society bf responsible and values-driven 
citizens including a highly productive and well}balanced work force that would 
translate the current 
recession adversely affecting the United States of America into a 
formidable economy again including national secutity. 
Counsel fails to explain how the actions of one teacher wJuld contribute significantly to nationwide 
social reform and economic recovery (except to speculat~ that one of her students may eventually 
become "a national figure such as a President, a legislat~r, a member of the judiciary, a scientist, 
among others"). General assertions about the overall uhportance of education, and the need for 
education reform, do not exempt every teacher from the jbb offer requirement. As members of the 
professions (as defined in section 101 (a)(32) of the Act), jteachers are subject to the job offer/labor 
certification requirement set forth in sections 203(b)(2)(A) and (3)(C) of the Act. Likewise, ali<;:ns of 
exceptional ability who ''will substantially benefit prospectifely ... the United States" are also subject 
to the job offer provision of section 203(b)(2)(A) of the Act. Congress created no blanket waiver for 
teachers. It is clear from the statute, therefore, that an alien! who works in a beneficial profession such 
(b)(6)
Page 8 
as teaching is not automatically or presumptively e~empt from the job offer requirement, 
notwithstanding conjecture about what her students may achieve decades in the future. 
Counsel asserts: "Exclusively and strictly enforcing thl rudiments behind the New York State 
Department of Transportation Case to Highly Qualifi<l:d Teachers is unjust, unreasonable and 
damaging to the 'Best Interest' of the American School Children." Precedent decisions are ~inding 
on all USCIS e~ployees in the administration of~he Act.ISe~ 8 C.F.R. § 10~.3(c). Counsel cites n? 
statute, regulation or case law that would requrre or pernut USCIS to disregard NYSDOT as It 
· applies to school teachers. Counsel attempts to distin~ish the present matter from NYSDOT by 
observing that the beneficiary in NYSDOT was a bridge ehgineer who, unlike the petitioner, worked 
I 
with inanimate objects rather than human beings who will, themselves, grow up to become United 
States workers protected by the labor certification proces~. This arbitrary effort at distinction is not 
persuasive. The statutory job offer requirement applies td all professionals, a class that' includes not 
only teachers but physicians and attorneys, all of whom wbrk with ''people" rather than ''things." 
Throughout this proceeding, rather than attempt to mJ the requirements set furth in NYSDOT, I 
counsel has sought iilstea~ to demonstrate that NYSD01j does not, or should not, apply to school 
teachers such as the petitioner. All of these attempts fail to persuade, for reasons explained above. 
As is clear from a plain reading of the statute, it was nol the intent of Congress that every person 
qualified to engage in a profession in the United States shotild be exempt from the requirement of a job 
offer based on national interest. Likewise, approval of the J.aiver cannot rest on the overall importance 
of a given profession, rather than on the merits of the indi~idual alien. On the basis of the evidence 
submitted, the petitioner has not ·established that a waivet of the requirement of an approved labor 
certification will be in the national interest ofthe United.States. 
The. burden of proof in these proceedings rests solely wjh the petitioner .. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burdcln. 
ORDER: The appeal is dismissed. ·