dismissed EB-2 NIW Case: Education

(b)(6)
DATEAPR 0 6 2015 
IN RE: Petitioner: 
Beneficiary: 
·u.S;Department of Homeland SecUrity 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER 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:// www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
. (/? 
�(/�';-. --Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) 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 holding an advanced degree. Although the 
petitioner did not complete Part 6 of the Form I-140, Immigrant Petition for Alien Worker, information 
in the record indicates that the petitioner seeks employment as an educator. 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 and additional evidence. Although the petitioner indicated on 
Form I-290B that a "brief and/or additional evidence will be submitted to the AAO within 30 
calendar days of filing the appeal" and reiterated in the appellate letter that a separate brief would be 
submitted, as of today, approximately ten months after the petitioner filed the appeal, we have not 
received any additional submissions. 
I. lAW 
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 record reflects that the petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in the instant petition is whether the petitioner has established that a waiver 
of the job offer requirement, and thus a labor certification, is in the national interest. 
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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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101 st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), 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. 
· 
In reNew York State Dept 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 she seeks employment in an area of 
substantial intrinsic merit. ld. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. ld. Finally, the petitioner seeking the waiver must establish that she 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. 
Although the national interest waiver hinges on prospective national benefit, the petitioner must 
establish that her past record justifies projections of future benefit to the national interest. !d. at 219. 
The petitioner's assuranCe that she will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. 
Further, assertions regarding the overall importance of a petitioner's area of expertise are relevant, 
but cannot by themselves suffice to establish eligibility for a national interest waiver without a 
· review of the petitioner's own qualifications. /d. at 220. Moreover, a "unique and innovative set of 
skills, knowledge and background" 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 U.S. Department of Labor through the alien employment certification process. /d. 
at 221. 
II. ANALYSIS 
The petitioner filed the Form 1-140 petition on April 19, 2013. The petitioner submitted copies of 
the following documents: 
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1. academic credentials; 
2. teaching license; 
3. affiliation with the 
4. letters of appreciation and certificates of appreciation, including a certificate for a 
presentation at in Virginia; 
5. an abstract; 
6. a course outline and lesson plan; 
7. past employment evaluations; 
8. employment verification letters; and 
9. evidence of additional trainings and recertification points. 
The petitioner has established that her work as a teacher is in an area of substantial intrinsic merit. It 
remains, then, to determine whether the proposed benefits of the petitioner's work will be national in 
scope and whether she will benefit the national interest to a greater extent than an available U.S. 
worker with the same minimum qualifications. 
NYSDOT provides examples of employment where the benefits would not be national in scope: 
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. 
/d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a 
teacher beyond her own students and, therefore, that her proposed benefits as a teacher are national 
in scope. The petitioner initially indicated that, in addition to teaching, she proposes taking the 
Virginia program through which she teaches nationwide. Subsequently, she proposes to develop 
new health curricula based on her concern with the implications of over the counter emergency 
contraception. While we do not question the merit of the petitioner's proposals, her indication that 
her proposals could have a national impact does not �ufficiently demonstrate the national scope of 
her proposed benefit. The record does not establish that the p;oposed employment is within a 
framework that typically has a national impact, such as the proper maintenance of bridges and roads 
already connected to the national transportation system. NYSDOT, 22 I&N Dec. at 217. In this case, 
Virginia implemented the program the petitioner initially sought to implement nationwide in the 
1970s and the record contains no evidence that other states have expressed an interest in this 
program and/or do not already have a similar program. As explained in the letter from 
Management and Program Analyst at the U.S. Department of Education, curriculum development 
and course content are solely the responsibility of state and local education officials and the 
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petitioner has not demonstrated the existence of a national framework for health curricula or asserted 
that she proposes to work as a curriculum consultant advising state and local education officials 
nationwide. Accordingly, the petitioner has not established that the proposed benefits of her work 
will be national in scope. 
With respect to the petitioner's personal track record, academic records, occupational experience, 
professional certifications, salary information, membership in professional associations, and 
recognition for achievements are elements that can contribute toward a finding of exceptional ability. 
See 8 C.P.R. § 204.5(k)(3)(ii)(A)-(F). See section 203(b )(2)(B) of the Act. The 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. NYSDOT, 22 I&N Dec. at 218, 222. Therefore, whether a given individual 
seeks classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in her field of expertise. The national 
interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. Although significant awards may be relevant to the question of the petitioner's impact 
and influence on her field, the petitioner does not assert and has not established that she is the 
recipient of any awards. 
As previously stated, the petitioner's academic credentials are sufficient to establish that she holds 
an advanced degree. The certificates of participation and attendance Jor training courses and 
seminars relating to her professional development demonstrate that the petitioner has pursued 
training to increase her professional knowledge and to improve as a teacher. Such pursuits are 
beneficial to her ability to succeed in her career, but there is nothing inherent in these activities to 
establish eligibility for the national interest waiver. Similarly, the letters of appreciatiQn and 
certificates of appreciation from local colleagues and organizations, including the certificate 
regarding the petitioner's local presentation at demonstrate that the petitioner is 
appreciated by her local colleagues. They do not, however, have more than local, regional or 
institutional significance, and, accordingly, they do not establish eligibility for the national interest 
waiver. 
In addition, the ·petitioner submitted past evaluations, an abstract, and a course outline with an 
accompanying lesson plan. These documents demonstrate that the petitioner ·is an experienced 
teacher who excels in the classroom and has creative ideas. The petitioner, however, did not 
demonstrate how the evaluations or the course outline and lesson plan reflect that she has impacted 
the field to a substantially greater degree than other similarly qualified educators and how her 
specific work has had significant impact outside of the institutions where she has taught. The 
unpublished abstract proposes that "[t]he programs offered at 
_ _ 
_ under the leadership of Dr. ' be "adapted and implemented in other school districts." 
has been in existence since the 1970s; The abstract does not explain the petitioner's role 
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in the programs offered at or the impact of the programs on the field. The petitioner has not 
provided any evidence to establish how the program has performed in Virginia since 
implementation in the 1970s or documentation that other states have taken notice of the 
program. Further, while the petitioner is an experienced teacher, she has not provided any evidence 
to establish that she has a successful track record of introducing a novel program nationwide, the 
benefit she proposes will be national in scope, or to document her experience working as a 
curriculum consultant. 
Regarding the petitioner's affiliation with the the petitioner did not submit any evidence to 
demonstrate the significance of her one-year membership and does not explain how the submitted 
documentation demonstrates her influence on the field as a whole. Notably, the affiliation includes 
14 of the petitioner's students. 
The record lacks specific examples of how the petitioner's work has influenced the field on a 
national level. At issue is whether this petitioner's contributions in the field are of such significance 
that she merits the special benefit of a national interest waiver, a benefit separate and distinct from 
the visa classification she seeks. A petitioner must demonstrate a past history of achievement with 
some degree of influence on the field as a whole. /d. at 219, n. 6. 
The director issued a request for evidence (RFE) on June 20; 2013. As stated in the director's 
request, "[t]he petitioner must establish that the beneficiary has a past record of specific prior 
achievement with some degree of influence on the field as a whole" and "must persuasively 
demonstrate that the national interest would be adversely affected if a labor certification were 
required." 
In response to the director's RFE, the petitioner submitted an "Outline of Proposal" and identical 
letters submitted to President Barack Obama, Virginia State Senator Janet Howell, Secretary Of 
Education Arne Duncan and Virginia Governor Robert McDonnell. 
The letters, all of which are dated July 25, 2013, are, as stated by the director in his decision, "dated 
after the filing of the Form 1-140." Eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). That decision further provides, 
citing Matter of Bardouill e, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that 
come into being only subsequent to the fili1,1g of a petition." /d. at 176. Regardless, the director also 
found that "[w]riting a letter ... is not restricted ... [and] is not indicative of having some degree of 
influence in the field." Similarly, according to the petitioner's undated "Outline of Proposal," she 
prepared it in response to a July 24, 2013 blog post. Further, the petitioner's proposal addresses for 
the first time education regarding emergency contraceptive pills and makes no reference to the 
programs discussed in the petitioner's abstract she submitted with the initial petition. 
Finally, the petitioner did not submit any evidence to establish that her abstract and proposal have 
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been implemented or garnered interest beyond Virginia and, therefore, they do not establish a past 
record of influence. 
On appeal, the petitioner submitted a personal statement, a thank you letter from Ms. at the 
U.S. Department of Education acknowledgin,g the petitioner's letter to Secretary Duncan, along with 
a copy of the petitioner's response to Ms. letter, and a thank you letter from President 
Obama acknowledging receipt of the petitioner's letter. These letters, acknowledging receipt of the 
petitioner's proposal, do not show that her work has affected the field. As previously stated, the 
petitione r's unsolicited letters addressed to government officials, regardless of the recipient, are not 
evidence of the petitioner's impact on the field. In addition, the responses only acknowledge receipt 
of the petitioner's letters. Regardless, the letters and the subsequent responses, cannot be 
considered here as they occurred after the date of filing. I d. 
The petitioner asserts that her "proposed project justifies projections of future benefit to the national 
interest and has some degree of influence on the field" because of the support of the White House for 
the General arguments or information regarding the importance of a given 
field of endeavor, or the urgency of an issue facing the United States; cannot by themselves establish 
that an individual benefits the national interest by virtue of engaging in the field. NYSDOT, 22 I&N 
Dec. at 217. Such assertions and information address only the "substantial intrinsic merit" prong of 
NYSDOTs national interest test. None of the submitted documents establish that the petitioner's 
specific work as a teacher has affected the field as a whole and she has no documented experience 
developing and introducing new curriculum beyond where she teaches. The petitioner has not 
established that her track record designing new educational programs for national implementation or 
even teaching justifies an exemption from the job offer requirement that, by statute, normally attaches to 
the immigrant classification that she seeks. 
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 �pecifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." Id. at 218. See also id. at 219, n.6 (the individual must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
A plain reading of the statute indicates 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. 
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. 
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, 
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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 appeal is dismissed.