dismissed EB-2 NIW Case: Education

(b)(6)
DATE: lUN ' 0 'l.\l\3 
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 
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.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, 
\\1 r\ : ._btvvL~&'A-J 
:hon;:u 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
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 
Qetitioner seeks employment as a high school 
science teacher for 
Since 2008, the petitioner has 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 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 copies of standardized test 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 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 entirely speculative. 
The USCIS regulation at 8 C.P.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 April 13, 2012. In an accompanying statement, 
counsel stated that the petitioner's "petition for waiver of the labor certification is premised on her 
Master's Degree in Education (Curriculum Specialist) and more than fifteen (15) years of dedicated 
and progressive teaching experience." 
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Academic degrees and experience are elements that can contribute toward a finding of exceptional 
ability. See 8 C.P.R. §§ 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, in turn, is not 
self-evident grounds for the waiver. See section 203(b )(2)(A) of the Act. 
Counsel also stated: "the importance of children's science education for the United States' national 
interest is well-recognized by the federal government." This assertion, and the existence of 
initiatives and legislation such as the No Child Left Behind Act (NCLBA), attest to the substantial 
intrinsic merit of science education, but it does not follow that a blanket waiver exists for science 
teachers. 
In a personal statement, the petitioner described her credentials and her experience, but did not 
address the NYSDOT national interest test. Regarding work she undertook in North Carolina from 
2004 to 2007, the petitioner stated: 
In my leadership role in the school's testing program, I devised a benchmark test to 
help the students succeed on the state's "End of Grade" sumrnative assessment .... 
The test proved very efficacious, enabling teachers and supervisors to improve the 
science curricula throughout the whole county .... I am very proud to say that my 
benchmark test and item-analysis strategies are still used by the 
, according to of the North Carolina State Dept. 
of Education. 
The petitioner did not indicate that her benchmark had an influence beyond or that 
her subsequent efforts in have resulted in wider implementation. The 
petitioner did not submit objective, documentary evidence to establish the extent to which 
continue to use her benchmark test. co-chair of the 
stated in a letter: "The test [the petitioner] designed is still being used by some 
of the schools in " The phrase "some of the schools" is ambiguous, and, as a 
official, it is not evident that would have first-hand knowledge of practices and 
policies in 
letter is one of several from teachers, administrators , students, and parents of students 
at various schools where she has taught. These witnesses praised the petitioner's abilities as an 
educator, but did not indicate that the petitioner's work has had, or will continue to have an impact 
outside of the classrooms and local school systems that have employed her. 
The director issued a request for evidence on August 25, 2012, indicating that the petitioner had not 
shown that her work has had impact or influence at a national level. In response, the petitioner 
described her credentials and indicated that she is "an excellent teacher . . . in a multicultural 
environment ," able to use "both traditional teaching strategies as well as the assimilation of modern 
technology based instruction." The petitioner indicated that she is a versatile teacher, in the process 
of "completing the National Board Certification in teaching," and has "started the process of 
procuring [her] Admin I certification." These factors improve the petitioner's skills as a teacher, but 
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they do not address the NYSDOT standards for the national interest waiver. In terms of broader 
impact, the petitioner stated: "I want to conduct research experiments in special education, especially 
in the area of autism . . .. I plan to do my research based on the causes of autism .... However, I am 
only able to do this research if I get the Green Card." The petitioner has not claimed or documented 
any past history as an autism researcher. As stated previously, the petitioner cannot qualify for the 
waiver based on speculation about future plans, when the petitioner has no record of achievement 
relating to the planned future work. 
The petitioner noted that "[t]he county cannot renew [her] H1 visa and cannot get [her] a Green 
Card." The petitioner refers, here, to debarment. The Department of Labor invoked the 
debarment provisions of section 212(n)(2)(C)(i) of the Act against owing to certain 
immigration violations by that employer. As a result, between March 16, 2012 and March 15, 2014, 
USCIS cannot approve any employment-based immigrant or nonimmigrant petitions filed by 
This debarment means that is, temporarily, unable to file its own petition on the 
alien's behalf, and thus explains why labor certification is not an option in the short term. 
The inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for 
a national interest waiver; the petitioner still must demonstrate that the alien will serve the national 
interest to a substantially greater degree than do others in the same field. NYSDOT, 22 I&N Dec. at 
218 n.5. Any waiver must rest on the petitioner's individual qualifications, rather than on the 
circumstances that temporarily prevent from filing a petition on her behalf. 
Counsel asserted: "The academic performance of each American student is weighed against the rest 
across the nation for each grade level by the United States Department of Education." Counsel 
stated: 
[T]he most tangible national benefit to be derived from a 'Highly Qualified 
Mathematics Teacher ' is recreating a society of 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. 
Counsel did not explain how the actions of one teacher would contribute significantly to nationwide 
social reform and economic recovery. 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the Department of Labor considers a bachelor 's degree, rather than a master's degree, to 
be the minimum educational requirement for a schoolteacher. (The petitioner was already working 
for when she earned her master's degree in December 2011, four months before she filed the 
1 The list of debarred employers is available online at http://www.dol.go 
added to record May 17, 2013). 
(copy 
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present petition.) Counsel contended that Congress set new standards by passing the NCLBA, which 
established the category of''highly qualified teachers." 
Section 9101(23) of the NCLBA, 20 U.S.C. § 7801(23), defines the term "highly qualified" in 
reference to teachers. Sections 9101(23)(B) and (C) of the NCLBA require that a "highly qualified" 
teacher "holds at least a bachelor's degree." Section 9101(23)(B) of the NCLBA also refers to 
"highly qualified" teachers who are "new to the profession." Thus, neither the petitioner's master's 
degree nor her experience are required for "highly qualified" status under the NCLBA. Counsel, 
therefore, did not support the claim that the labor certification process frustrates the NCLBA's 
mandate for schools to employ "highly qualified teachers." 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contained in the record of proceeding. See 8 C.F.R. § 103.2(b )(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher in 
The petitioner submitted a printout of an August 30, 2012 news story from the web site of 
television station . The headline reads" named among nation's best schools." 
The article indicated that "is featured in a new book called ' --' ' touting 
it as one of the best schools in the country." The record does not contain any other information 
about, or excerpts from, the book named in the article. The article does not mention the petitioner, 
and there is no evidence that the book gave the petitioner credit for standing. 
The director denied the petition on December 20, 2012. The director acknowledged the petitioner's 
submission of witness letters, but found that the letters "are based on general premises and only 
praise the petitioner's dedications [sic] and diligence." The director found that the petitioner had not 
established the impact, influence, 
or national scope of her past work. 
On appeal, 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 special legislative or regulatory provisions that exempt school teachers from NYSDOT 
or reduce its impact on them. 
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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 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. 
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 asserts that the benefit arising from the petitioner's work is national in scope because of the 
"national priority goal of closing the achievement gap." 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. 
Citing printouts submitted on appeal, counsel states: "The MSA [Maryland State Assessment] 
Reading results show that out of the 24 Maryland school districts ranked near the bottom at 
the 'All Student' level for each MSA-covered grade level." Counsel adds: "it is noteworthy that the 
updated Maryland Report Card shows that did not meet its Reading proficiency AMO 
targets." The petitioner has worked for since 2007, and thus had been there for a number of 
years before the administration of the MSA tests. 
Counsel states that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics) but cites no evidence to support that claim. The 
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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). Even if the petitioner had documented her "proven 
success in raising 
proficiency of her students," it does not follow that the petitioner has had an impact or 
influence outside of 
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. 
Much of the appellate brief consists of general statements about educational reform and discussion 
of perceived flaws in the labor certification process. It is within Congress's power to establish a 
blanket waiver for teachers, "highly qualified" or otherwise, but contrary to counsel's assertions, that 
waiver 
does not yet exist. 
It is evident from a plain reading of the statute that 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. 
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.