dismissed EB-2 NIW Case: Education

(b)(6)
DATE: MAY 1 7 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Adminis trative 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 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.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.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, 
?Ron Rose 
Acting Chief, Administrative Appeals Office 
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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 hnmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with progressive post-baccalaureate 
experience equivalent to an advanced degree. The petitioner seeks employment as a high school 
mathematics teacher for At the time she filed the 
petition, the petitioner taught 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 with the defmed 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 brief from counsel and copies of recent assessment scores. 
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 progressive 
post-baccalaureate experience equivalent to an advanced degree under the regulation at 8 C.P.R. 
§ 204.5(k)(3)(ii)(A). 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 
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Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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 entirely speculative. 
The AAO also notes that 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 1-140 petition on March 5, 2012. In an accompanying introductory 
statement, counsel stated that the petitioner "is a highly qualified Mathematics educator and will· 
therefore continue to be an asset to the United States educational system." Counsel listed the 
petitioner's evidentiary exhibits 
but did not address the NYSDOT guidelines or explain how the 
petitioner meets them. 
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The petitioner submitted her own 16-page statement, in which she described her experience, 
credentials, and goals. She stated: 
After eleven years of teaching mathematics at in the 
Philippines, filn August 2003, I was selected for the 
, , _ from a large pool of applicants. The _ is a three-year 
teaching exchange program designed for outstanding and world-class international 
teachers .... During my three-year tenure as a Mathematics Teacher at 
North Carolina, I ... exceeded the expectations of both the 
and the host school district. .. . 
On mv second year as a teacher, I had successfully reached the highest level in 
the ... And on my third 
year as a teacher, I was selected to serve as a Local Advisor for the School Year 
2005-2006. A Local Advisor is a person with impeccable leadership skills, a good 
listener and who has a mission beyond them self [sic] which allows them to influence 
new VIF teachers in a way that will impact their entire perception of the United 
States and their experience as a cultural exchange teachers [sic]. ... 
In August 2007, I transferred to . , a four-year 
comprehensive high school, as well as a Science and Technology Center, [where] I 
was able to serve a varied student population ranging from those qualified for the 
Science and Technology Program to those in the special education program. I was 
successfully able to work with students throughout the range of abilities. 
The petitioner described her involvement in several activities and initiatives at 
School, including mentorship programs and "smaller learning communities [that] focus on 
academic 
and social development and provide intensive support systems to enable students to attain grade­
level proficiency." The petitioner also noted that she was on the school's faculty when' 
..., was rated as 'One of America's Top High Schools' by the 
Regarding her efforts after her 2011 transfer to the petitioner stated: 
I stand out as a great addition to the Mathematics Department. Due to my deep 
content knowledge and . . . excellent pedagogy . . . , I am assigned to teach three 
diverse classes of Trigonometry-Analysis ... [and) three Geometry classes .... I 
generously offer extended learning opportunities to my students by giving tutorials . 
. . . I consistently attend numerous Professional Development workshops and 
seminars to gain more knowledge and experience .... I strongly believe that I am 
doing an outstanding performance and having a very substantial impact in [sic] my 
students especially in preparing the juniors and seniors for college education. 
The petitioner submitted copies of teacher evaluations, showing consistent ratings at the 
"Satisfactory" level (the highest of three available levels). The petitioner also submitted several 
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exhibits under the heading "achievements and recognitions." Nearly all of these exhibits are from 
the The most specific such exhibit is a September 2, 2005 letter, attributed 
collectively to " " indicating that 
that the petitioner "successfully 
reached the highest level in the _ " The 
letter did not indicate that the petitioner reached this level through educational contributions. Rather, 
she attained it by having "earned 6000 or more points ... through [her] participation in cultural 
activities in [her] schools and communities." 
Apart from the materials, the remaining "achievements and recognitions" consist of 
two certificates from _ a June 19, 2009 "Teacher Recognition Certificate," 
acknowledging the petitioner's "Commitment & Dedication to the Students of ''and June 17, 
201 0 "certificate of appreciation .. . for dedication and service to '' 
The petitioner submitted letters from teachers and administrators at schools where the petitioner has 
worked, and from a VIF official. These witnesses praised the petitioner's efforts and abilities, but 
did not claim that her work has had any significant impact or influence beyond the schools where 
she has taught. At most, they indicated that education in the United States would benefit if more 
teachers were like the petitioner. 
On June 7, 2012, the director issued a request for evidence, stating: "The record fails to establish that 
any independent company, public or private schools is [sic] pursuing a development of the 
petitioner's work. Please submit evidence to establish that the beneficiary's past record justifies 
projections of future benefit to the nation" (emphasis in original). The director did not specifically 
identify NYSDOT, but set forth the guidelines from that decision that the petitioner must meet. 
In response, the petitioner submitted copies of background materials regarding the state of 
mathematics education in the United States. Counsel stated that "American students have become 
less competitive against pupils of other countries in Science and Mathematics .... [T]here is a lot of 
work to be done by 'Highly Qualified' Math teachers like" the petitioner. Counsel highlighted the 
words "Highly Qualified" with capital letters and quotation marks to indicate that the petitioner 
meets the statutory definition of a "Highly Qualified Teacher" in the No Child Left Behind Act of 
2001 (NCLBA). 
Counsel asserted that, because Congress passed the NCLBA after the issuance of NYSDOT, that 
statute therefore supersedes the precedent decision. Counsel cited no statute, regulation, or case law 
that specifically supports this claim. The assertion that the NCLBA modified or superseded 
NYSDOT is not persuasive; 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 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, counsel has not established that the NCLBA indirectly implies a similar legislative 
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change. 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 contended that the NCLBA gave the petitioner's occupation national scope because the 
petitioner meets that statute's definition of a "highly qualified teacher." The national interest waiver 
is not available to a member of the professions who holds only a bachelor's degree; an advanced 
degree is required even to qualify for consideration for the waiver. See sections 203(b )(2)(B) and (3) 
of the Act. Sections 9101(23)(B) and (C) of the NCLBA, however, require only a bachelor's degree 
for a "highly qualified" teacher. Section 9101(23)(8) of the NCLBA also refers to "highly 
qualified" teachers who are "new to the profession," showing that such a teacher need not have at 
least five years of progressive post-baccalaureate experience, which is equivalent to a master's 
degree under the USCIS regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). Thus, the "highly qualified" 
label is available to an intending immigrant who would not qualify for classification under section 
203(b )(2) of the Act. Therefore, the petitioner has not established that a "highly qualified" 
designation under the NCLBA presumptively qualifies that intending immigrant for a benefit 
available only to those who qualify for classification under section 203(b )(2) of the Act. 
The general assertion that improved education serves the national interest is not sufficient. There are 
a great many activities that collectively benefit the United States, but it does not follow that every 
foreign national engaged in a beneficial occupation is entitled to a waiver of the job offer 
requirement that Congress created and which remains in force. 
Counsel mentioned other sources that affirmed the importance of education, and stated that these 
materials "determined the employment of Math teacher as national in scope." Counsel thus 
conflated the national importance of "education" as a concept, or "educators" as a class, with the 
impact of one teacher. 
Counsel contended that privacy considerations "prevent[] the self-petitioner from obtaining 
information of her colleagues regarding their credentials to determine what contribution they have 
accomplished for purposes of comparing whether her contributions are greater than those 'Available 
[sic] U.S. Workers." NYSDOT, however, does not require the petitioner to compare her private or 
proprietary records with those of other teachers. Rather, the petitioner must establish a record of 
influence on the field as a whole. To do so does not require an invasive review of other teachers' 
credentials. Rather than establish such a record of influence, counsel has asserted that the NYSDOT 
guidelines ought not apply to "math teachers." The petitioner has failed to establish that NYSDOT 
guidelines do not apply to math teachers, or to teachers in general. 
The director denied the petition on November 30, 2012. The director discussed the petitioner's 
evidence and quoted from several witness letters, and concluded that the petitioner had not shown 
how her work, individually, would produce benefits that are national in scope. 
On appeal, counsel repeats the claim that "the NCLB Act and the Obama Education Programs, taken 
collectively, provide the underlying context for" approving national interest waivers for highly 
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qualified teachers. A substantial portion of the brief consists of variations on this basic claim. 
Counsel identifies no specific statutory or regulatory provision granting blanket waivers to teachers, 
and USCIS lacks the authority to create such a blanket waiver. Counsel amply establishes that 
Congress and the present administration have emphasized the importance of educational reform, but 
counsel has identified no explicitly immigration-related component of these policy pronouncements. 
It cannot suffice for counsel to state that the passage of the NCLBA created "protected rights [for] 
'American students' to have 'highly qualified teachers," and to assert that denial of the waiver 
amounts to a violation of those rights. 
Counsel emphasizes the "national priority goal of closing the achievement gap," but cites no 
evidence to show that the petitioner has produced nationally significant results in this regard. 
Counsel also cites test results showing that ' did not meet its Reading proficiency AMO 
targets." Counsel did not explain the relevance of this information, given that the petitioner is a 
math teacher (as counsel, elsewhere, has repeatedly emphasized). Rather than provide information 
specific to the petitioner, counsel repeats the assertion that, as a "highly qualified teacher," the 
petitioner's work is consistent with the goal of "closing the achievement gap." 
Counsel stated: ' rated as One of America's Top High 
Schools from School Year 2008 to 2009. Because of that, [a] Certificate of Recognition was 
awarded to [the petitioner] for her commitment and dedication to the students of dated 19 
June 2009." This wording implies that the rating was the basis for the certificate. The 
record shows that gave the petitioner a similar certificate the following year. Printed at the 
bottom of the 2009 certificate is the phrase: '' rated as 
One of America's Top High Schools I School Year 2008-2009." The certificate did not indicate that 
credited the petitioner, specifically, with this distinction, or that the certificate was directly 
related to that designation. Rather, the school gave the petitioner a "teacher recognition certificate" 
at the end of the 2008-2009 school year, and a "certificate of appreciation" at the end of the 2009-
2010 school year. The record does not reveal whether presented these certificates only to 
her, or to a select handful of teachers, or to every member of the faculty. There is not sufficient 
information to conclude that these certificates represent unusual distinctions in the field of teaching. 
Furthermore, the petitioner submitted no evidence from the publishers of to establish that 
the petitioner, in particular, merited special credit for 's selection as a top high school. 
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. It remains that the petitioner's certificates do not 
facially establish eligibility for the national interest waiver. Counsel clearly considers these 
certificates to be significant, listing them again on appeal, while at the same time protesting that 
privacy considerations prevent the petitioner from showing that her achievements exceed those of 
others in her field. The director did not require the petitioner to establish exceptional ability in her 
field. Instead, the director observed that the petitioner's certificates do not show that the petitioner's 
work has had an influence beyond the school districts where she has worked. 
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As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
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. 
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. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
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.