dismissed EB-2 NIW Case: Education

(b)(6)
nATE: NOV 2 B zog 
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 
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: 
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: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, 
�£Nterg 
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 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 post-baccalaureate experience 
equivalent to an advanced degree. The petitioner seeks employment as an elementary school teacher for 
From February 2007 up to the time she 
filed the petition, the petitioner was a Head Start teacher at 
Maryland. 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 defined 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 legal brief and a personal letter. 
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 with post­
baccalaureate experience equivalent to 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. 
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. The 
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petition included two copies of this form, but the petitioner did not sign part 16 of the form to 
declare, under penalty of perjury, that the information on the form is true and correct. 
Neither the statute nor the pertinent regulations defme the term "national interest." Additiona lly, 
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, 101st 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 (USCIS)] believes it 
appropriate to leave the application of this test as fle xible 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 "excep tional."] 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies pro jections 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 regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that o rdinarily encountered" in a g iven 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. 
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The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 16, 2013. An 
accompanying statement reads, in part: 
[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 Transportation .... 
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 
skiiJs, infusing the ranks of our scientists and engineers and educators with new 
blood and new ideas.' 
(Petitioner's emphasis.) 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 promotes the immigration of educators, but the default mechanism for 
doing so is the job offer requirement and labor certification process, not the national interest waiver. 
The petitioner contended that the NYSDOT decision provided no specific defmition of the "national 
interest," and 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): 
Through the No Child Left Behind Act of 2001, the United States Congress has in 
effect remarkably engraved the missing definition upon the concept of 'in the 
national interest,' which centered it on the 'Best Interest of American School 
Children.' More importantly, U.S. Congress also provided the means to achieve 
this now defined '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, the Service now has a definite working definition of 'in the national interest' 
including the clear standard on what qualifications must be required from NIW [national 
interest waiver] teacher self-petitioners, as mandated by No Child Left Behind Act of 
2001. ... 
This means that the act of honoring the Congressional intent in No Child Left Behind 
Act of 2001 by the Immigration Service resulting [in] favorable decisions for the NIW 
teachers, is sanctioned under INA § 203(b )(2)(B)(i). 
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(Emphasis in original.) None of the phrases that the petitioner 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). 
With respect to the petitioner's claims regarding congressional intent, 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'l. 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. Because 
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 individually 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. 
The petitioner submitted copies of several certificates that she has received over the course of her 
career. She stated that these certificates are "evidence of recognition for achievements and significant 
contributions to the field," which is a criterion for classification as an alien of exceptional ability at 
8 C.P.R. § 204.5(k)(3)(ii)(F). By statute, an alien of exceptional ability remains, by default, subject to 
the job offer requirement at section 203(b )(2)(A). Therefore, partial evidence of exceptional ability is 
not necessarily sufficient to establish eligibility for the waiver. The petitioner must show that the 
contributions thus recognized demonstrate influence on the field as a whole. The certificates in the 
record do not rise to this level. Instead, they recognize contributions at the local level, such as 
participation in seminars, coaching students in academic competitions, and serving as a "demonstration 
teacher" for training purposes. Several of the certificates recognize "perfect attendance," which 
demonstrates diligence but is not a contribution to the field. 
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The petitioner submitted letters from faculty, administrators, students, and parents of students at various 
schools where she has taught. The letters contained praise for the petitioner's skill and dedication, but 
did not indicate how the petitioner's work has had an impact beyond the schools where she has taught. 
The director issued a request for evidence on September 27, 2013. The director stated that the 
petitioner had shown that she is qualified to teach for but had not established "a past record 
of specific prior achievement with some degree of influence on the field as a whole." 
In response, the petitioner submitted a statement that repeats and expands upon the assertions in the 
statement submitted with the initial filing of the petition. The petitioner acknowledged that "the No 
Child Left Behind Act of 2001 is not an immigration law per se," but repeated the claim that the 
NCLBA nevertheless reflects Congress's specific intention to waive the job offer requirement for 
highly qualified teachers. The petitioner cited no specific section of law to support this claim. As 
noted previously, when Congress has sought to change the law relating to national interest waivers, 
it did so by amending the Act, with statutory language that specifically referred to the waiver. The 
petitioner quoted language from the NCLBA that made no mention of immigration, foreign teachers, 
or the national interest waiver, and the petitioner identified no passage in the statute that would 
supersede section 203(b )(2)(A) of the Act. 
The petitioner discussed the importance of "closing the achievement gap between high- and low­
performing students," but offered no evidence that her work in the United States since 2007 has 
made significant progress toward closing that gap on a national level. 
The petitioner claimed that the labor certification process would pose a "dilemma" because her 
qualifications exceed the minimum requirements for the position, and "the employer is required by No 
Child Left Behind (NCLB) Law .. . to employ highly qualified teachers." The petitioner did not show 
that these two considerations are incompatible. Section 9101(23) of the 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. 
The petitioner states that the labor certification standards are inadequate because they require "just a 
bachelor's degree," but that is also the minimum degree requirement for a highly qualified teacher (and 
the highest academic degree that the petitioner holds). The petitioner did not explain how the above 
requirements are incompatible with the existing labor certification process, and she submitted no 
evidence that the labor certification process has resulted in the widespread employment of teachers 
who are less than "highly qualified." 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'! 
Comm'r 1972)). 
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The petitioner cites various background materials regarding the importance of math and science 
education, but the petitioner does not specialize in teaching math and science. Even if she did, 
Congress has created no blanket waiver for math and science teachers. 
Regarding her own qualifications, the petitioner listed all the exhibits that had previously accompanied 
the initial filing of the petition, but she did not explain the relevance of these materials or show that 
they meet the NYSDOT standards for the waiver. 
The director denied the petition on April 14, 2014, stating that the petitioner had established the 
intrinsic merit of her occupation, but had not satisfied the other two prongs of the NYSDOT national 
interest test. The director acknowledged the petitioner's claims regarding the NCLBA, but found 
that possessing "qualifications and experience above the bare minimum that is required for the job 
she seeks" is not sufficient to qualifY the petitioner for the waiver. 
On appeal, the petitioner asserts, via a legal brief, that USeiS "has granted National Interest Waiver 
Petitions [for other] Highly Qualified Teachers." The petitioner then lists her supporting exhibits 
and the exhibits submitted with the other petitions. The petitioner does not submit copies of the 
materials submitted with the approved petitions. Unlike the Administrative Appeals Office, service 
centers do not routinely issue written approval decisions to explain the specific reasons behind a 
given approval. Therefore, we cannot review the specific reasons underlying the approvals, or 
determine whether the other petitions were approved in error. Service center approvals are not 
binding precedent decisions under 8 C.P.R. § 103.3(c), and therefore the cited approvals have no 
weight in the present proceeding. The approval of individual petitions does not demonstrate that 
every foreign teacher who meets the NeLBA's definition of a "highly qualified teacher" is therefore 
entitled to a national interest waiver. 
The petitioner claims: "A New Thought Process must be designed by users with respect to NIW 
Petitions by 'Highly Qualified Teachers' instead of routinely applying the Matter of New York State 
Dept. of Transportation generically." As a precedent decision, NYSDOT is binding on all USCIS 
employees in the administration of the Act. See 8 C.P.R. § 103.3(c). 
The petitioner claims that NYSDOT, which concerned a bridge engineer, "obviously is good in far as 
NIW cases filed by Engineers are concerned but does not give justice to other professionals especially 
since the facts are definitely distinct from each other, not to mention subsequent legislations intended 
to provide guiding principles to implement ... rMMACT 90." The three-part national interest test in 
NYSDOT is, by design, broad and flexible. It does not include specific evidentiary requirements that 
only an engineer could satisfy, and its application is not, and was not intended to be, limited to 
engineers. The petitioner has cited no primary source in the statute or legislative history to support the 
claim that "Congress legislated NeLB to serve as guidance to users in granting legal residence to 
'Highly Qualified Teachers. "' As such, the petitioner's unsupported assertion carries no weight. See 
Matter of Soffici, 22 I&N Dec. at 165. 
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The petitioner claims to be "an effective teacher in raising student achievement in STEM" (science, 
technology, engineering and math), but submits no evidence to support this claim. The petitioner 
states: "The fact that did not meet its 2012 AMO [annual measurable objectives] target for 
Reading proficiency underscores the importance of having effective teachers of Reading/Language 
Arts in each classroom." By 2012, the petitioner had been working for for five years. The 
district's continued low ranking suggests that, even at the local level, the petitioner's efforts have not 
resulted in measurable overall improvements; the record does not show that the petitioner has 
transformed into a model for other districts to emulate, or that the petitioner has had unusual 
success even within her own school system. The petitioner does not explain how her future work 
will "clos[ e] the achievement gap" on a national scale when there is no evidence that her past work 
has done so at the county level. 
In a subsequent letter, the petitioner requested an extension of employment authorization because 
several members of her family depend on her income in order to meet educational and medical 
expenses. The present proceeding does not concern an application for work authorization, and our 
jurisdiction in this case is limited to the appeal that is before us. 
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. Congress has not established any blanket waiver for teachers. 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 appear is dismissed.