dismissed EB-2 NIW Case: Education

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PVBLICCOPY 
DATE: Office: NEBRASKA SERVICE CENTER 
MAY 0 {) 2011 
INRE: Petitioner: 
Beneficiary: 
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 ofthe 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: 
SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be 
filed within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
5 Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
. t 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision on motion. The matter is now before the Administrative Appeals 
Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to 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 Swahili teacher/instructor. The petitioner asserts that an exemption 
from the requirement of a job offer, and thus of an alien employment 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 had 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 asserts that his influence in the field is apparent from the fact that he works as 
a teacher of students who apply their knowledge outside of the classroom. For the reasons discussed 
below, the AAO upholds the director's bases of denial. Notably, the petitioner has never explained 
why his qualifications are not amenable to enumeration on an application for alien employment 
certification. Beyond the director's decision, the petitioner did not submit the required initial evidence 
to establish his advanced degree. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), a/rd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Section 203 (b) of the Act states in pertinent part that: 
(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) 
Page 3 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
Eligibility for the Classification 
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an employer 
in the United States. An advanced degree is a United States academic or professional degree or a 
foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further 
states: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five 
years of progressi ve experience in the specialty shall be considered the equivalent of a master's degree. 
If a doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." Id. 
The petitioner asserts that he holds a Master's degree in Swahili linguistics and a Ph.D. in education. 
The regulation at 8 C.F.R. § 204.5(k)(3)(i) requires that the petitioner submit his "official academic 
record" as evidence of a degree. The petitioner submitted his official transcript from 
_. The transcript reflects four semesters of graduate credits from the College of Education but 
does not reflect that the university awarded a degree to the petitioner. The transcript also lists 
"Previous/Transfer Institutions." This section states that the petitioner received a Bachelor of 
Education from the in 1994 and a Master of Arts from the 10 
2004. The transcript, however, is not an official academic record of his 
education at other institutions. 
As e~us education, the petitioner submitted a "Faculty Provisional Transcript" from 
the ~ stating: "Recommendation: To be awarded Master of Arts in Swahili." This 
provisional transcript recommending that the university award a Master's degree to the petitioner is not 
evidence that the university did, in fact, issue the degree. Moreover, the petitioner did not submit an 
evaluation of this degree explaining the U.S. equivalency of this foreign degree. As such, the petitioner 
has not documented that his foreign degree, assuming he received it, is a foreign equivalent degree to a 
U.S. degree above a baccalaureate. 
Finally, the petitioner submitted his Bachelor of Education from . While issued in 1994, 
it is the petitioner's burden to document the necessary five years of post baccalaureate experience. The 
regulation at 8 C.F.R. § 204.5(g)(1) states that evidence of experience "shall" consist of letters from 
employers. The petitioner did not submit such evidence documenting five years of post baccalaureate 
experience as of the date of filing. Moreover, the petitioner did not submit an evaluation of the • 
••• ,; degree explaining the U.S. equivalency of this foreign degree. Notably, the petitioner only 
submitted transcripts for three years of coursework. A United States baccalaureate degree is generally 
found to require four years of education. Matter afShah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). 
Thus, the petitioner has not documented that his Bachelor of Education is a foreign equivalent degree to 
a U.S. baccalaureate. 
Page 4 
On appeal, the petitioner asserts that his employer hired him because of his "exceptional abilities" but 
has never explained how he meets at least three of the regulatory requirements for aliens of exceptional 
ability at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Rather, he has always argued that he qualifies for the 
classification sought as an advanced degree professional. 
In light of the above, the petitioner has not established his eligibility for the classification sought. 
Nevertheless, in the interest of thoroughness and because it was the director's sole basis of denial, the 
AAO will consider the request for a waiver of the alien employment certification process in the national 
interest. 
National Interest Waiver 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 10 1 st Cong., 1 st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(lMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service 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. 
Matter o/New York State Dep't. o/Transp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider 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. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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. Id. at 217-18. 
It must be noted that, 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. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. The use of the term 
"prospective" requires future contributions by the alien, rather than to facilitate the entry of an alien 
Page 5 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. Id. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, Swahili 
education. In response to the director's request for additional evidence, the petitioner asserted that 
the proposed benefits will be national in scope. Specifically, he stated that foreign language 
education in general is in the national interest and that Swahili is "among the languages on the 
Department of Defense's Strategic Language List." 
ioner further asserted that he will in the 
The petitioner asserted this Title 
VI program recei ves fundin~ U. S. Department of Education. Finally, the petitioner asserted 
that while he teaches at two_ institutions, his students come from all over the United States 
and foreign countries and participate in an exchange program at the where they 
represent "the national interests of the United States." 
NYSDOT, 22 I&N Dec. at 217, n.3, provides the following discussion of occupations where the 
benefits are not national in scope: 
Id. 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national interest, 
the impact of a single schoolteacher in one elementary school would not be in the 
national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sufficiently in the 
national interest for purposes of this provision of the Act. 
The argument that teaching Swahili serves the national interest goes to the substantial intrinsic merit 
of the petitioner's work, not whether a single teacher provides benefits that are national in scope. 
While the petitioner's students may come from various locations, it remains that the impact of a 
single teacher is so attenuated at the national level as to be negligible. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. In the director's final 
decision, she stated that the petitioner had not established his influence on the field of foreign 
language education. On appeal, the petitioner states: "if the petitioner's proposed employment is an 
area of substantial merit and that the benefit will be national in scope, then the petitioner's influence 
cannot be limited to 'the walls of the schools where he has worked. '" The petitioner misunderstands 
the final issue set forth in NYSDOT, 22 I&N Dec. at 218-23. Even if the AAO agreed with the 
director that the proposed benefits are national in scope, simply working in an occupation where the 
Page 6 
benefits can be national in scope does not create a presumption that the petitioner has a "past history 
of demonstrable achievement with some degree of influence on the field as a whole." See id. at 219, 
n.6. 
The petitioner has submitted evidence establishing the importance of teaching Swahili in the United 
States and the need for more Swahili teachers. Eligibility for the waiver, however, must rest with the 
alien's own qualifications rather than with the position sought. In other words, U.S. Citizenship and 
Immigration Services (USCIS) generally does not accept the argument that a given project is so 
important that any alien qualified to work on this project must also qualify for a national interest 
waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses 
useful skills, or a "unique background." Special or unusual knowledge or training does not 
inherently meet the national interest threshold. The issue of whether similarly-trained workers are 
available in the United States is an issue under the jurisdiction of the Department of Labor. ld. at 
22l. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. ld. at 219, n. 6. In evaluating the petitioner's achievements, the AAO notes that 
original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. ld. at 221, n. 7. 
affirming that the petitioner "has been 
a valuable member" of _, whose members present their countries and cultures in the community. 
This letter does not address the petitioner's work as a teacher of Swahili. 
Second, the petitioner submitted several certificates. The Certificate of Participation for Linking All 
Types of Teachers to International, Cross-cultural Education (LATTICE) 2005-2006 does not specify 
the petitioner's level of participation. The petitioner also submitted a "Responsible Conduct of 
Research" certificate from This certificate recognizes the ethical conduct of 
research rather than the ultimate impact of the research. In addition, the petitioner submitted a 
Certificate of Attendance for a national seminar of Kiswahili professionals offering "intensive refresher 
courses in Kiswahili Studies." This certificate simply demonstrates additional training in the 
occupation. Further, the petitioner submitted a foreign language certificate with no accompanying 
translation. The petitioner must attach a complete certified translation for every foreign language 
document. 8 C.F.R. § 103.2(b)(3). The record also includes a Certificate of Appreciation from the 
•••••••••••••• lfcor "Dedicated Service as Kiswahili teacher." This certificate 
constitutes local employer recognition. These certificates do not demonstrate the petitioner's influence 
on the field of foreign language education. 
Page 7 
The remaining certificates do not relate to the petitioner's area of proposed . cally, 
the petitioner submitted a Certificate of Merit from the Chairman of the 
District Education Officer for _ The certificate recognizes that the petitioner "has successfully 
attended Practical and Theoretical Instructions on Theatre Techniques and skills during a District 
Drama Workshop." The petitioner does not explain how this certificate relates to his ability to teach 
Swahili as a foreign language. Similarly, the petitioner submitted a merit certificate relating to his 
participation in a volleyball clinic. This document has no relevance to the petitioner's activities as a 
Swahili teacher. 
Third, the petitioner submitted an unpublished foreign language manuscript. As the record does not 
establish that this manuscript appeared in a trade journal or other evidence of its wide dissemination, 
the record does not demonstrate how it could have influenced the field. Even if published, the 
petitioner would need to demonstrate its ultimate influence or application in the field. 
Finally, the petitioner initially submitted Email correspondence from various schools discussing their 
interest in offering Swahili courses. This correspondence does not address the petitioner'S personal 
accomplishments in that field. 
On May 18, 2009, the director advised the petitioner of the legal requirements for the benefit sought 
and requested additional evidence. In response, the petitioner submitted his self-serving curriculum 
vitae. This document, without supporting evidence, cannot establish the petitioner's accomplishments 
in the field. The petitioner also submitted job offers dated after the date of filing. As noted by the 
director, the petitioner must establish his eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). 
an associate professor at affirms the importance of 
teaching Swahili but does not identify the petitioner'S specific accomplishments in this field. Officials 
at acknowledge the receipt of five paperback books from the petitioner. The 
petitioner's donation of materials to the college, while generous, is not an example of his 
accomplishments as a teacher of Swahili. 
The petitioner submitted evidence of his membership in Rotary International. The record does not 
reflect that Rotary International is a Swahili, foreign language, or education association that recognizes 
accomplishments in those fields. Moreover, professional memberships are one type of evidence that 
may be submitted to demonstrate exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(E). Because 
exceptional ability, by itself, does not justify a waiver of the job offer/labor certification requirement, 
arguments hinging on professional memberships, while relevant, are not dispositive to the matter at 
hand. NYSDOT, 22 I&N Dec. at 222. 
~ner also submitted a March 5, 2009 letter from the 
.... accepting the petitioner's paper for presentation. This 
petition and cannot establish eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of 
Page 8 
Katigbak, 14 I&N Dec. at 49. Moreover, as stated above, merely disseminating research is not 
evidence that the research is ultimately influential. More persuasive is evidence that the research was 
subsequently cited or otherwise utilized in the field. 
Ultimately, while the petitioner may be a qualified and experienced Swahili teacher, he has not 
established his influence in the field. For example, the record lacks evidence that he has authored 
influential curricula or authored well cited articles in the field. The petitioner's qualifications to teach 
Swahili can be enumerated on an application for alien employment certification. Thus, the record lacks 
evidence that waiving that process is in the national interest. 
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 
ofTer 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 alien employment 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.