dismissed EB-2 NIW Case: Education

(b)(6)
DATE: JUN 1 Q 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals O
ffice (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. 
Thank you, 
~on Roseno 
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 
reject the appeal as untimely. If the appeal had been timely, the AAO would have dismissed the appeal 
on the merits. 
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 math teacher. At the time she filed the etition, the petitioner taught 
at , a public school in Maryland. USCIS records 
indicate that the petitioner now works for _ Virginia. 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. 
In order to properly file an appeal, the United States Citizenship and Immigration Services (USCIS) 
regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal 
within 30 days after service of the unfavorable decision. Whenever a person has the right or is 
required to do some act within a prescribed period after the service of a notice upon him and the 
notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete 
upon mailing. 8 C.F.R. § 103.8(b ). 
The director denied the petition on December 11, 2012. The petitioner, through counsel, attempted 
to file the appeal on December 28, 2012. The filing included a misdated check. A benefit request 
which is not signed and submitted with the correct fee(s) will be rejected. 8 C.F.R. § 103.2(b)(7)(1). 
The regulation at 8 C.F.R. § 103.2(b )(7)(ii) allows a petitioner or applicant to remedy certain fee 
deficiencies "within 14 calendar days." The director rejected the appeal in a notice dated December 
31, 2012, because "[ t ]he date on the check/money order [the petitioner] submitted is not current." 
Counsel submitted a new check with a cover letter dated January 17, 2012; USCIS received the 
appeal with fee on January 22, 22 calendar days after the December 31, 2012 notice. 
The petitioner did not timely file an appeal with the proper fee, and therefore the above regulations 
require rejection of the appeal. Even if the petitioner had timely filed the appeal, the AAO would have 
dismissed the appeal for the reasons explained below. 
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. -
(b)(6)Page 3 
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professimis 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 
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 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 
(b)(6)Page 4 
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 December 27, 2011. In an accompanying statement, 
counsel stated: 
[The petitioner's] petition for waiver of the labor certification is premised on her 
Masters Degree in Mathematics with a solid 36 Doctorate credit [hours] obtained, 
over fifteen (15) years of dedicated and progressive teaching experience exclusively 
in Mathematics ... , the awards and recognition received by her, among others. 
Academic degrees, experience and institutional recognition (such as awards) are all elements that 
can contribute toward a finding of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and 
(F), respectively. Exceptional ability, in turn, is not self-evident grounds for the waiver. See section 
203(b)(2)(A) of the Act. Particularly significant awards may serve as evidence of the petitioner's 
impact and influence on her field, but the petitioner did not demonstrate the significance of the 
awards documented in the record. Most of the awards are certificates that she received in 
conjunction with training teams in regional or district math competitions. Her school also named her 
"Teacher of the Year" in 2009 an honor that received coverage in the _ a newspaper 
for in the United States. The article indicated: "There are now over 600 
teachers spread out in almost 200 public schools." 
Counsel asserted that the petitioner should receive the waiver because she is "capable of helping the 
nation improve the education of children in Mathematics which has been determined to be of great 
importance by the Federal and State Governments." Counsel did not identify any specific 
improvements attributable to the petitioner. 
Counsel stated that the record contains a "Letter[] of Recognition ... From Ms. 
" The letter, dated May 3, 2011, reflected on the 2010-2011 school year, 
and contained no specific information about the petitioner. 
The petitioner submitted witness letters from faculty, administrators, and students at various schools 
where the petitioner has taught, as well as one of her former college professors. These letters praised 
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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. Other witnesses praised the petitioner's personal character. 
signed a "Certification" indicating that the petitioner "is a bonifide [sic] author of 
She is one of the authors of Textbook. 
(Published in the Year . " The record contains no other information about the textbook. 
The director issued a request for evidence on June 27, 2012, stating: "the evidence submitted failed 
to establish that [the petitioner's] contributions influenced her field as a whole." The director 
instructed the petitioner to "submit evidence that the beneficiary's contributions will impart national­
level benefits." 
Much of the petitioner's response to the request for evidence concerned the intrinsic merit of 
mathematics education, which does not distinguish the petitioner from others in the same field. 
Current law creates no blanket waiver for math teachers, and therefore general assertions about the 
value of the profession cannot establish eligibility for the waiver. Other materials stressed the need 
for education reforms, but did not show what role, if any, the petitioner has played in implementing 
such reforms. 
Counsel stated: 
Since a 'National Mathematics Teacher' is not even a real concept but more of 
metaphysical cognition [sic], undersigned wishes to once again posit a realistic 
proposition upon which to establish that the self-petitioner 's contributions will impart 
national-level benefits. 
Even the curricula used by each state education department in the United States vary 
from each other. 
In other words , since not all NIW cases are based on prevailing Acts of United States 
Congress, it is but harmless to assert that if an NIW Petition is made with premise on 
some prevailing Acts of United States Congress, that by itself renders the proposed 
employment national in scope. 
Counsel contended that the No Child Left Behind Act (NCLBA) and other legislation and policy 
initiatives establish that Congress and the executive branch have put special emphasis on education, 
especially in math and related subject areas. All employment-based immigrant classifications are 
based on "Acts of United States Congress," as is the statutory job offer requirement. There is no 
basis to conclude that Congress, by mentioning a given occupation in a particular piece of 
legislation, exempted aliens in that occupation from the job offer requirement. 
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Counsel stated that the petitioner "has established her influence in the field of Mathematics based on 
numerous awards, honors and distinctions which cannot just be ignored." Counsel then listed many 
of the exhibits previously submitted with the initial filing of the petition. Simply identifying these 
exhibits, however, does not establish the petitioner's "influence in the field of Mathematics." The 
authorship of a math textbook, or parts thereof, can potentially have national impact, but the record 
contains insufficient information to establish the impact or influence of the petitioner's work on the 
textbook identified above. Furthermore, the book appeared before the petitioner arrived in the 
United States. The record does not show that the petitioner has written for any textbooks in the 
United States, or that any publisher has sought her contributions in that regard. Her involvement in a 
single publishing project several years ago does not establish that the petitioner will continue making 
similar contributions in the future. 
The director denied the petition on December 11, 2012. The director stated: 
There is no question that the petitioner is a highly qualified math teacher. The 
petitioner established herself as an outstanding teacher and mentor. She is well liked 
by her superiors, peers and students. Her community involvement has helped her 
local community. However, evidence submitted failed to establish that her 
achievements had some degree of influence in her field as a whole .... 
The petitioner's assertions regarding the overall importance of an alien's area of 
expertise cannot suffice. 
Counsel states that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and claims that "the NCLB Act and the Obama Education Programs, taken 
collectively, provide the underlying context for the adjudication of a national interest waiver 
application made in conjunction with an E21 visa petition for employment as a Highly Qualified 
Teacher in the public middle school education sector." Counsel, however, identifies no specific 
legislative or regulatory provisions that exempt school teachers from NYSDOT or reduce its impact 
on them. 
Contrary to counsel's assertion that the NCLBA modified or superseded NYSDOT, that legislation 
did not amend section 203(b )(2) of the Act or otherwise mention the national interest waiver. In 
contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 
Stat. 1312 (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 change. 
Counsel states: 
(b)(6)Page 7 
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 contends that the labor certification process cannot meet the nation's needs because school 
teachers "require only a bachelor's degree," and therefore labor certification "would not meet the 
objective of employers to hire highly qualified teachers pursuant to No Child Left Behind." 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." Because the NCLBA defines a teacher with a bachelor's degree 
as "highly qualified" (provided the teacher meets other specified requirements), the labor 
certification process does not thwart the NCLBA by setting the minimum degree requirement at a 
bachelor's degree rather than a master's degree. 
While asserting that the NCLBA virtually mandates approval of the waiver, counsel cites a 2010 
Department of Education report, ESEA Blueprint for Reform/ and acknowledges: 
The U.S. Department of Education's finding that meeting the NCLB Act's 
requirements for the "highly qualified" standard "does not predict or ensure that a 
teacher will be successful at increasing student learning" because while the NCLB 
requirements set minimum standards for entry into teaching of core academic 
subjects, they have not driven strong improvements in what matters most: the 
effectiveness of teachers in raising student achievement which demonstrates that 
teacher effectiveness contributes more to improving student academic outcomes than 
any other school characteristic. 
1 The quoted portion is available online at http:Uwww2.ed.gov/policy/elsec/leg!blueprint/great-teachers-great-leaders.pdf 
(printout added to the record May 9, 2013). 
(b)(6)Page 8 
The cited report does not support counsel's key contention, which is that the employment of "highly 
qualified teachers" as defined in the NCLBA will "clos[e] the achievement gap." 
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, and the record does not show that the petitioner's work has brought Baltimore's 
schools closer to meeting the NCLBA's achievement requirements. 
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. 
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 rejected.