dismissed EB-2 NIW Case: Education

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DATEJUN 1 8 2013 
INRE: 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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals 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 case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of 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 
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 the motion seeks to reconsider or reopen. 
Thank you, 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 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 professions holding an advanced degree. The 
petitioner seeks employment as a high school chemistry teacher in New York, New York. 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 brief from counsel and background information from the New York 
State Education Department (NYSED). 
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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, 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 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 "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 Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered 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 that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
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. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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 entire I y speculative. 
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 petition on May 1, 2012. The petitioner signed Part 8 of the 
form under penalty of perjury, certifying "that this petition and the evidence submitted with it are all 
true and correct." Part 4, line 6 of the petition form asked: "Has any immigrant visa petition ever 
been filed by or on behalf of this person?" The petitioner answered "No." This answer, however, is 
incorrect. USCIS records show that the New York City Department of Education (NYCDE) filed a 
Form I-140 petition on the alien's behalf on March 11, 2008, with an approved labor certification 
filed on November 20, 2007. The Texas Service Center approved that petition, classifying her as a 
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professional under section 203(b)(3) of the Act. The alien beneficiary of that petition (the self­
petitioner in the present proceeding) signed Part L of the ETA Form 9089 labor certification 
application, so she was demonstrably aware ofNYCDE's filing. 
On Part 3 of Form 1-140, the petitioner indicated that she held H-1B nonimmigrant status, valid 
through May 14, 2012. USCIS records show that NYCDE was the petitioning employer for that 
status. The petitioner's H-1B nonimmigrant status did not authorize her to work for any employer 
other than NYCDE. See 8 C.P.R.§ 274a.12(b)(9). 
The petitioner filed Form ETA-750B, Statement of Qualifications of Alien, at the same time as the 
petition, on May 1, 2012. Part 15 of that form instructed the petitioner to "[l]ist all jobs held during 
the last three (3) years. Also, list any other jobs related to the occupation" in which the petitioner 
now seeks employment. On the form, the petitioner listed only one job, teaching for "New York 
Public Schools" from November 2005 to August 2010. The petitioner claimed no employment after 
August 2010. By signing Form ETA-750B, the petitioner declared under penalty of perjury that the 
information on that form was true and correct. 
Concurrently with her Form I-140 petition, the petitioner filed a Form I-485 adjustment application 
on May 1, 2012. The petitioner signed Part 5 of the adjustment application, thereby certifying 
"under penalty of perjury ... that the information provided with this application is all true and 
correct." As part of the adjustment application package, the petitioner completed and signed Form 
G-325A, Biographic Information, which cautioned: "Severe penalties are provided by law for 
knowingly and willfully falsifying or concealing a material fact." 
Instructed to list her residences over the past five years, the petitioner listed four addresses, all in 
New York City (one in Queens, three in the Bronx). Instructed to list her employment over the past 
five years, the petitioner listed three employers: 
Occupation 
Chemistry Teacher 
Asst Teacher 
Lead Teacher 
From 
Nov 2005 
Oct 2010 
Mar 2011 
A resume submitted with the Form I-140 etition indicated that the petitioner 
To 
Aug 2010 
Mar 2011 
Present 
as lead teacher to Toddlers (ages 18 months to 36 
months)." The petitioner did not explain how she has worked for an employer in Washington since 
2011 if she resided in New York at the time. 
The information that the petitioner provided on the above-listed forms is inconsistent with respect to 
her whereabouts and employment after August 2010. Doubt cast on any aspect of the petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The petitioner 
does not explain why, if she was already working as a high school chemistry teacher in New York 
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and intends to do so in the future, she (in her words) "shifted in her career path" by leaving that job 
to work at day care centers. 
The petitioner submitted letters from administrators, teachers, and former students, praising the 
petitioner's skill, dedication, and personal character. The petitioner also submitted copies of 
certificates establishing her professional training and acknowledging her service, and satisfactory 
performance evaluations (the most recent of which dates from June 2009). Neither counsel nor the 
petitioner addressed the guidelines set forth in NYSDOT. 
The director issued a request for evidence on June 20, 2012, instructing the petitioner to "submit 
evidence to establish that the beneficiary's past record justifies projections of future benefit to the 
nation." 
In response, the petitioner submitted background materials about the importance of science 
education. These materials establish the intrinsic merit of science education, but they do not show 
that the petitioner qualifies for a waiver of the job offer requirement that, by statute, normally applies 
to science teachers. 
Counsel asserted that the petitioner's "proposed employment as a 'Highly Qualified Chemistry 
(STEM) Teacher' is national in scope and ... will impart national-level benefits." Counsel cited 
various federal initiatives aimed at reforming or improving public education, particularly the No 
Child Left Behind Act (NCLBA). One of the submitted supporting exhibits, a Wall Street Journal 
article entitled "Rising to the Challenge," quoted , executive director of the 
National Science Teachers Association, as stating: "The focus of the No Child Left Behind Act ... 
has been on literacy and mathematics, and so we have a whole group of students not being 
adequately prepared for science careers." Counsel quoted this passage, and other materials that refer 
to a continuing decline in United States education after the passage of the NCLBA, without 
acknowledging that this evidence undermines the claim that the NCLBA has improved science 
education. The petitioner provided no evidence that she arrested or slowed that downward trend 
during the several years that she taught high school science in the United States. 
Counsel stated that approving the waiver is "economically wholesome to the United States 
Government instead of waiting for more than 2 centuries until U.S. workers become as highly 
qualified as she is." Counsel did not explain how the petitioner's 25 years of experience place her is 
"2 centuries" ahead of United States science teachers. To support the claim that the petitioner will 
benefit the entire United States, counsel cited the economic burdens that undereducated workers 
place on society. The petitioner provided no evidence to show the extent to which her past work has 
alleviated those burdens. 
Counsel stated that the Department of Labor, for labor certification purposes, holds that the 
petitioner's position "require[s] only a bachelor's degree, [and therefore] would not meet the 
objective of the employer to hire highly qualified teachers pursuant to No Child Left Behind." 
Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." One ofthe criteria 
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for that designation is that the teacher "holds at least a bachelor's degree." Therefore, the wording 
of the statute does not support counsel's implied claim that the NCLBA mandates the hiring of 
teachers with advanced degrees. 
The director denied the petition on December 18, 2012. The director described several of the 
submitted exhibits and quoted the witness letters, but concluded: "The petitioner's employment is 
limited to a local impact. The petitioner has not established that Congress intended the national 
interest waiver to serve as a blanket waiver for all teachers." The director added that the petitioner's 
credentials do not cause the benefits from her work to be national in scope. 
On appeal, the petitioner submits a 50-page printout of "How Adequate Yearly Progress (A YP) Is 
Determined Using 2011-12 Data," an 
electronic slide presentation prepared by the NYSED. This 
document amounts to background evidence at best, and does not establish a blanket waiver for 
science teachers. 
In the appellate brief, counsel asserts that section 203(b )(2)(B)(i) of the Act does not contain clear 
guidance on eligibility for the waiver, and claims that Congress subsequently filled that gap with the 
passage of the NCLBA. Counsel notes that Congress passed the NCLBA three years after the 
issuance of NYSDOT as a precedent decision, and claims that "[t]he obscurity in the law that 
NYSDOT sought to address has been clarified," because "Congress has spelled out the national 
interest with respect to public elementary and secondary school education" through such legislation. 
Counsel, however, identifies no specific legislative or regulatory provisions that exempt school 
teachers from NYSDOT or reduce its· impact on them. 
Counsel does not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b )(2) of the Act. 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 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, counsel has not shown that 
the NCLBA indirectly implies a similar legislative change. 
Counsel states: 
With respect to the E21 visa classification, INA § 203(b )(2)(A) provides in relevant 
part that: "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 ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States. 
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Counsel, above, highlighted the phrase "national educational interests," but the very same quoted 
passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are 
sought by an employer in the United States." Counsel has, thus, directly quoted the statute that 
supports the director's conclusion. By the plain wording of the statute that counsel quotes on appeal, 
an alien professional holding an advanced degree is presumptively subject to the job offer 
requirement, even if that alien "will substantially benefit prospectively the national ... educational 
interests ... of the United States." Neither the Immigration and Nationality Act nor the No Child 
Left Behind Act, separately or in combination, create or imply any blanket waiver for teachers. 
Counsel contends that the petitioner "has submitted legal, testimonial as well as documentary 
evidence including logical and practical reasoning that establish the benefit derived by the United 
States from her employment is national in scope." Counsel does not elaborate or identify this 
claimed evidence. The national importance of "education" as a concept, or "educators" as a class, 
does not establish that the work of one teacher produces benefits that are national in scope. See 
NYSDOT, 22 I&N Dec. 217, n.3. A local-scale contribution to an overall national effort does not 
meet the NYSDOT threshold. The aggregate national effect from thousands of teachers does not give 
national scope to the work of each individual teacher. 
Counsel contends that the petitioner's "contribution in raising student achievement in Science . 
. . 
enfleshes the Obama Education Programs' priority of having a great teacher in every classroom." 
The petitioner has not documented the extent to which she "rais[ ed] student achievement in Science" 
between 2005 and 2010. Counsel protests that the NYSDOT national interest test relies on 
"hypotheticals" that cannot be measured, but counsel's own claims rest in large measure on 
hypothetical assertions. One such hypothetical claim - that the labor certification process cannot 
take the petitioner's qualifications into account - conflicts with documented fact. The petitioner did 
in fact receive an approved labor certification, which overcomes any speculation that she might have 
difficulty securing a labor certification. 
Counsel cites nine previously submitted exhibits as "overwhelming evidence" of eligibility. One of 
these exhibits is a certificate showing that the petitioner was a coach for students in an English essay 
writing contest in the Philippines. This document has no evident relevance to the petitioner's 
abilities as a high school chemistry teacher. Some other certificates simply acknowledged length of 
experience, which is not grounds for granting the waiver. The record does not support counsel's 
claim that these materials are "overwhelming evidence" in the petitioner's favor. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. Counsel's contention rests on 
the incorrect assumption that the NYSDOT guidelines amount to little more than an item-by-item 
comparison of an alien's credentials with those of qualified United States workers. The key 
provision in NYSDOT is that the petitioner must establish a record of influence on the field as a 
whole. /d. at 219, n.6. To do so does not require an invasive review or comparison of other 
teachers' credentials. 
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Counsel claims: "the Immigration Service is requiring more from the beneficiary's credentials and 
tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. As noted previously, the threshold for exceptional 
ability is below, not above, the threshold for the national interest waiver. It remains that the 
petitioner's evidence does not establish eligibility for the national interest waiver. The director did 
not require the petitioner to establish exceptional ability in her field. Instead, the director observed 
that the petitioner's evidence does not show that the petitioner's work has had an influence beyond 
the school districts where she has worked. 
Counsel, on appeal, states that the labor certification guidelines "require only a bachelor's degree" 
for special education teachers, and therefore "would not meet the objective of employers to hire 
highly qualified teachers pursuant to No Child Left Behind." Elsewhere in the same brief, however, 
counsel acknowledges that the statutory definition of a "Highly Qualified Teacher" requires only a 
bachelor's degree. Counsel does not 
reconcile these contradictory claims. 
Counsel states that a waiver would ultimately serve the interests of United States teachers, because if 
schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Law," the 
result would be "not only ... closure of these schools but [also] loss of work for those working in 
those schools." Counsel does not document "closure of ... schools" for failing to meet NCLBA 
requirements. The unsupported assertions of counsel 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 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
By statute, engaging in a profession (such as teaching) does not presumptively entitle such professionals 
to the national interest waiver. Congress has not established any blanket waiver for teachers. Eligibility 
for the waiver rests not on the basis of the overall importance of a given profession, but rather on the 
merits of the individual alien. Furthermore, the petitioner has provided conflicting information that 
casts doubt on fundamental claims and indicates that she has left the occupation on which the waiver 
request rests. 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.