dismissed EB-2 NIW Case: Education

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DATEDEC 0 5 Z013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Ben.eficiary: 
U.S. :Pepartment 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: ImfiJ,igtaht 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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of th~ 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. lfl~Y file a motioQ to te<,:onsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal ot 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, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
.>-Ron Rosen · rg 
Chief, Administrative Appeals 
Office 
www.uscis.gov 
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· DISCUSSION: The Pitector, Texas _ Service Center, denied the employment-based immigrant visa 
petition. The matter is now before tbe AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and -Niitionality Act (the 
Act), 8 U.S.C § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks e"rt1ployment a,s an elementary school teacher for 
in Maryland.' Since 2008~ the petitioner ha.s . t::mgbt a,t . _ 
·Maryland. The petitioner asserts that an exemption from the requiremepJ of a job 
offer, and th11s of •iiliibQr certification, is in the national interest of the United States. -the director found 
that the petitioner qualifies for classification as ii men_iber of the professions holding an advanced 
degree, but that the petitioner has not established that an, ·exemption from the reqyireroent of a job offer 
would be in the national Interest of the United States. 
On appeal, the petitioner submits a personal statemeni. 
Earli~r ' in this proceeding, attorney represented the petitioner. He prepared the 
Fqi'rtl I~ 140 petition and, lat.er; a response to ii request for evidence (RFE), including a cover letter on his 
letterhead, and mailed the RFE response from his New York address, riither t.hat1 _from the petitioner;s 
Maryland address·. Subsequently, however, Mr. did not prepare Or Sign the Fotrn I~290a Notice 
of AppeaJ; the petitioner,' s personal staterp.ent on appeal includes no mention of legal representation;. 
and the petitioner mailed the iippeal from her own M_azylii_I:!cl address. Form I-29013 advises that 
attorneys "must attath a Fonil G-28, Notice of Entry of Appearance as Attorn_ey or Represemative'' to 
the . iippeai, as ·required by the U~S. Citizenship and Immigration SerVices (USCIS) regulation aJ 
8 C.P.R. § 292.4(a). ·· The appeal does not include this form. therefore, the, record contains no 
indication that Mr. is still the petitioner's attorp:~y ofrecord . The term "prior counsel'' in this 
decision shall refer to Mr. 
Section203(b) of the Act states, in pertinent part: 
(Z) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
ExGeptional Abil_i_ty~ -
I 
(A) In General. ~ Visas shall be mad.e available ... to ql!alifi~d immigrants who are 
members of the professions holding advance.d degrees or their eqU.iVale.nt or who · 
because of their exceptional abillty in the. sciences, arts, or business, \vill substantially 
bene:(itpros.pectively the national economy, cultural or educational interests, or welfare 
of the United States, .and whose services i11 the ~ciences, arts, professions, or business 
are sought by an employer in the Uruted States, 
(B) Waiver of Job Offer -
(i) .. . the Attorney General may, wben the Attorney General deems it to be in 
the national interest, waive the requirements ofsubparagraph (A) that an e:1Jien's 
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services in the sciences, arts, professions, or business be sought by an employer 
in the l)nited States. r 
The director did not dispute that the petitioner qualifies ~ ll. member of the professions holding an 
a<;lvanced degree. 1 The sole issue in contention is whether the petitioner has ~stabhshed that a waiv~r of 
tb_e,job offer r~quirement, and thus a labor certification, is in'lhe national interest. ' 
Neither the statute nor the p.ertinent regulations define the term "nation(ll interest." Additionally, 
Congress did not provide a specific definition 'of "in the national interest." The Cor:runitt~e on the 
Judiciary merely noted 
in its report to th.e Senate that the .committee had "focused on national intere'st by 
increasing the number and proportion of visas for im.mjgr(lllts who would benefit the United States 
economically and otherwise .... "· S. Rep~ . No. 55, 101 st Cong., 1st Sess., 1l (1989), · 
Supplementary informatibn to regllbltions implementing the immigration Act of 1990 (IMM.A.CT. 
90), Pub.L. 101=649, 104 Stat. 4978, (Nov. 29, 1990), 
p\lblished at$6 Fed. Reg. 6089'7, 60900 (Nov. 
29,/1991), states: - . 
The ServiCe Lnow U.S. Citizenship and 'Immigration Services (lJS.CIS)] believes . it 
appropriate to leave the application of this test as flexiP!e as possible; although dearly 
an (J.lten . seeking to meet the [national interest] standard must make a showing , 
significantly above th_c:tt necessary to prove the "prospective national ben~fit" 
[required of aliens seeking to qua:lify as "exception(ll."] The burden will rest with the . 
alien to establish . that exemption from, ot waiver of, the job offer will be in tbe ·. 
national interest. Each case is to be judged on its owrt merits. 
In re New York State Dep 't of Transportation (NYSDOT), 22 I&N Pee. 215 (Act. Assoc. Comm'r 
1998), has set forth severai factors. which must be considered when evaluating a request for ll. national 
interest waiver. Fir:st, tbe petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the · petitioner must show tbat th.~ prqposed benefit will be national in ~cope. 
Finally, the petitioner must establish that the alien will serve tbe, national interest to a substantially 
greater degree than would a~ available t.Jllited'States worker haVing the same m.ini.iJ:n.,irp qualifications. 
While the naticma) interest w"'jver binges on prospective national benefit, the petitiOner rtn.lst establish 
that the aliert' s past.tecotd justifies projections of future benefit to the national interest. The petitio net's 
subjective. assuranee that the alien will, in the future~ serve tbe rialionll.l interest cannot suffice to 
estaJ:>li.sh prospective national benefit. The intention behind the terth "prospective" is to require futwe 
contril::Jutioris by th.e alien, ratper than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would tll.usbe entirely speculative. 
I 
( 
1 A q·ederiti<l! evalu<3.tiori in the record stares that the petitioner's February 2005 Master of Arts diploma from. 
_ _ _ .Philippines, is equivalentto aUnited States master's degree. Her Marylanq Edycator 
Certificate issued in 2008 , however, shows her '''Highest Degree" as a "Bachelor's." Even if the petitioner's . foreign 
master 's degree is not equivale!lt to a {]nited States master's degree, her post-baccalaureate experience is equivalent to a 
master 's degree und.er the regl,lll1tioJ1 at 8 C.F.R . § 204.5(m)(3)(i)(B) . , 
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The OSCIS 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 atea 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 exception~! ability. Therefore, whether a given alien seeks 
dassifjcation 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 February 27, 2012~ In a statement submitted with the 
initial filing, the petitioner stated: 
\. 
I served the Philippine public school system for over fifteen years. Being well­
equipped with skills to coach, I trained the best students to compete for district, 
division and regional level competitio11s in Science and Campus Journalism. I was 
named "Outstanding Teacher of the Year" by the administrators and staff members of 
I passed the rigid selection process for demonstration 
teacher. 1 garnered the Hest Demonstration Teaching Award (Regional Level) -
Project ISIP (Improving Science Instructim:tal Program) granted by the Department of 
Education-Region III, Philippines as a result of competition frorn the chosen s<;hools 
in the region .... 
In Augttst 2008, I was hired to teach at 
Maryland .... To further enhance my skills, I attended s.everal workshops ... •. As 
· . always, l persevere in achieving the · highest level of competency in the teaching 
profession. My versatility in teaching is demonstrated through my success in 
increasing the. reading abilities of my students. I was awarded . for s11perior 
achievement on Developmental Reading Assessment (DRA) increases Of students. 
The instructional approaches that I used have shown consistent progress through data~ 
driven assessments. As a Kindergarten teacher for three years, I am proud to say that 
my students can read on-gtade and above .. grade level. Not one stayed below grade 
level, which means that they are ali prepared for future schooling. Now, being th~ 
kindergarten grade-level chairperson, I initiate field trips .... An Extended Learning 
Opportunity (ELO) is also a great accomplishment that our team is offering to qur 
stUdents who are stl1lggling in Math and Reading. · · 
The petitioner submitted copies of various certificates she received from 
and other schools where she has worked. Some certificates named her an "Outstanding Staff 
Member" an:d "Most Outstanding Teacher," while others recognized specific achievements such as 
improved student performance and coaching students in regional competitions. Other certif.icl,ltes 
establish her setvice as a facilitator and speaker at various training sessions and. other gatherings. 
The petitioner submitted several letters from faculty and administrators of schools where she has 
worked, as well as parents of her students, a former high school classmate, ~nd the mayor of a city 
on the Philippines where the petitioner previously worked. These witnesses praised the petitioner's 
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abilities and character, but they did not claim that her work has had a significant impact outside of 
the communities where she has worked. 
The petitioner's initial submission established her professional competency and dedication to 
teaching, but did not address the issue of the national interest waiver. 
On July 13, 2012, the director issued a request for evidence, instructing the petitioner to submit 
evidence to meet the guidelines set forth in NYSDOT. In response, prior counsel asserted that the 
beneficiary's ''profess1on as [a] 'Highly Qualified Elementary Science Teacher' is national in scope 
and will impart national.,.level benefits ill improving Elementary Science Education." Prior counsel 
stated that a decline in the quality of science education in the United States has contributed to the 
economic recession of the past few years. Establishing the national significance of science 
education, however, does not mean that the work of one teacher produces benefits that are national 
in scope. The NYSDOT decision explains: "while education is in the national interest, the impact of 
a single schoolteacher in one elementary school would not be in the nation_al i11terest for purposes of 
waiving the job pfJer requirement of section 203(b )(2)(B) of the Act." !d. at 217 n.3. Prior counsel 
did not address this passage ftom the precedent decision. 
Prior counsel stated: 
Since a 'National Elementary Science Teacher' is not even' a real concept but more of 
metaphysical cognition [sic], undersigned wishes to one¢ 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 vaty 
from each othet. · 
In other words, since not a_ll NIW cases are based on prevailing Acts of United States 
Congress, it is but harniless to assert that 'if all NIW Petition is made with premise on 
some prevailing Acts of United States Congress, that by itself renders the proposed 
employment national in scope. 
While Congress has passed education-related legislation, the national interest inherent in education 
doe.s not cause evety teacher t6 meet the national scope ptong of the NYSDOT national interest test. 
Prior counsel cited the No Child Left 
Behind Act of 2001 (NCLBA), Pub.L. 107-110, 115 Stat. 1425 
(Jan. 8, 2002), and other legislation and policy initiatives that put special emphasis on education. Of 
these initiatives, the only identified statute that specifically addressed immigration was IMMACT 
90. IMMACT 90 created the national interest waiver, but also (1) identified teachers as members of 
the professions and (2) specified that members of the professions holding advanced degrees are, as a 
rule, subject to the job offet requirement. Counsel, therefore, claims an intent behind the legislation 
that is at odds with the plain wording of that same legislation. 
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Prior counsel contended that the labor certification process presents a ''dilemma" because "the 
employer is required by No Child Left Behind (NCLB) Law .. , to employ highly qualified 
teachers," but, by the Department of Labor's standards, school teachers "require only a bachelor's 
degree." Citing the petitioner's "Master's degree plus over 20 years of experience," prior counsel 
claimed that the labor certification process "would not meet the objective of employers to hire highly 
qualified teachers pursuant to No Child Left Behind." 
' Section 9101(23) of the NCLBA defines the term "highly qualified" in reference to teachers. 
Sections 9101(23)(8) and (C) ofthe 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 is 
required for ''highly qualified" status t.mder the NCLBA. Prior counsel, therefore, did not support 
the claim tbAt the labor certification process frustrates the NCLBA's mandate for schools to employ 
"highly qualified teachers." Going on record without Supporting documentary evidence is not 
sufficient for purposes of meeting . the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCalifornig, 14 I&N Dec. 
190 (Reg'l Comm't 1972)). 
Prior counsel stated that labor certification "covers only the education and work experience 
qualifications" of job applicants, and that "even if two (2) teachers have exactly the same education 
degrees and w~rk experience, their effectiveness cannot be identical.'' Therefore, prior counsel 
concluded, "the labor certification process would not in MY way [yi~ld] an identically effective 
Science teacher as" the petitioner. Counsel cited no evidence to support this Claim. The assertions of 
counsel .do not conStitute evidence. 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). . 
Any objective qualifications which are necessary for the performance of the occupation can be 
articulated in an application for alien labor certification; the fact that the alien is qualified for the job 
does not warrant a waiver of the job offer/labor certification requirement. 
Prior counsel listed various certificates that the petitioner received, and asserted that these materials 
"established her influence" and therefore ''cannot just be ignored." Prior counsel did not explain 
how any of the materials demonstrated the petitioner's impact on education beyond the local level. 
Prior counsel stated that another teacher received a national interest waiver, and asked that 
the present petition "be treated in the same light." 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, priOr counSel provided no evidence to 
establish that the facts of the instant petition are similar to those in the uppublished decision. the 
only stated similarity is that the beneficiary of the approved petition is "also a teacher in 
" 
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The director denied the petition on February 5, 2013, because the petitioner had met only the 
"substantial intrinsic merit" prong of the NYSDOT national interest test. On appeal, the petitioner 
asserts that her father's military service in the United States Navy inspired her desire to immigrate to 
the United States, and states: 
I may not be the. best nor the greatest in my field but I would like to prove that I can 
be an asset to your, government ...• I gradu~ted Valedictorian in high school, Cum 
Laude in college and finished my masters .... lbecrune [an] outstanding teacher to 
my school, district and region in the Philippines and in [the] United States. The 
petitioner's ability is not avail~ble to most ofthe available U.S. workers. My interest 
to serve the country, make ail impact to the youth of [the] United .states. of Americ:a 
and help 'the future of young American[ s] to achieve the highest potential in the realm 
of Education, inspired me to continue my te_&cbing career. 
' 
To qualify for the waiver, one need not "be the best [or] the greatest in [one's] field." In this 
instance, the petitioner has not established, un<ier t.be gQidelines set forth in NYSDOT, that it is in the 
national interest to waive the job offer requirement that normally applies to members of th~ 
professions (such as teachers) holding an advanced degree. The re.cord does not show that the 
petitioner has had a discernible influence on elementary education beyond the jurisdictions where 
She has worked. While education is in the national interest, the impact of ~ single schoolteacher in 
one elementary school would not be in the national interest for purposes Of waiving the job offer 
requirement. NYSDOT at 217 n.3. 
By statute, engaging in a profession (such as teaching) does not presumptively entitle s.uch 
professionals to the national interest waiver. Congress has not established the existence of any 
blanket waiver for teachers. Eligibility for the waiver 
rests not on the b.~sis 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 Stc,ttes. 
The AAO 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, 
. 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORI>ER: The appeal is dismissed.