dismissed EB-2 NIW Case: Education

(b)(6)
DATE: 
APR 1 0 2015 
IN RE: 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: 
SELF-REPRESENTED 
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:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
�tft;�::�trative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Servic� Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now 
before us on motion to reconsider. We will dismiss the motion. 
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. According to 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as an 
elementary school teacher. At the time of filing, the petitioner was teaching at 
Florida. 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. In our appellate 
decision, we upheld the director's determination. 
On motion, the petitioner submits a brief. and additional evidence. The petitioner asserts that she is 
"eligible for a waiver of the job offer and labor certification requirement. " 
A motion to reconsi,der must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions or legal citation to establish that the decision was based on ari incorrect 
application of law or U. S. Citizenship and Immigration (USCIS) policy. A motion to reconsider a 
decision on an application or petition must, when filed, also·establish that the decision was incorrect 
based on the evidence of record at the time of the initial decision. 8 C.F. R. § 103. 5(a)(3). A motion 
to reconsider contests the correctness of the original decision based on the previous factual record, as 
opposed to a motion to reopen'which seeks a new hearing based on new or previously unavailable 
evidence. See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal argumen ts " that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Id. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. Id. at 60. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), 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. !d. at 217. Next, a petitioner must establish that the proposed bepefit will be national in 
scope. Id. Finally, the petitioner seeking the waiver must establish that she will serve the national 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
interest to a substantially greater degree than would an available U. S. worker having the same minimum 
qualifications. ld. at 217-18. 
In the April 7, 2014, decision dismissing the petitioner's appeal, we upheld the director's determination 
that the petitioner had failed to establish eligibility for the national interest waiver. The petitioner's 
evidence was not sufficient to demonstrate· that she meets the second and third requirements specified in 
NYSDOT. Specifically, the petitioner had not shown that the benefits of her work as a teacher would be 
national in scope and that she would benefit the national interest to a greater extent than an available 
U. S. worker with the same minimum qualifications. 
On motion, the petitioner states that the nature of her employment and H1-B nonimmigrant visa 
status have "limited the scope of [her] performance." The petitioner asserts that the school district 
controlled her output and prevented her from implementing programs that "could have helped the 
system more. " Regardless of the circumstances of the petitioner's employment and her assertion 
that her nonimmigrant visa and employment situation have limited the scope of her influence on the 
educational system, the petitioner must still demonstrate that she will serve the national interest to a 
substantially greater degree than do others in the same field. NYSDOT at 218, n. 5. Eligibility for the 
waiver rests on the petitioner's individual qualifications and the prospective national benefits of her 
work, rather than on the circumstances that she asserts prevent her from compiling and 
disseminating her work beyond The petitioner has not shown that her efforts have had 
more than a local impact, or that U. S. school systems have successfully implemented her teaching 
methodologies. 
The petitioner quotes NYSDOT at 2i 7, n. 3 regarding the limited scope of elementary school teachers, 
and asserts that the quoted passage represents "a pre judgment as to whether an Instructional Teacher 
will be able to qualify for the waiver. ... If this is the case no single school teacher may qualify for 
the waiver. " Nonetheless, while the petitioner expresses her disagreement with the quoted passage, 
she acknowledges NYSDOT' s finding that 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. !d. In 
addition, the petitioner asserts that, as much as "teachers would want to get to multiple schools so as 
to widen their service area, the nature of the job will not permit it. . . . It has to be taken into 
consideration that, teachers are limited by the system they are into [sic]. " With regard to following 
the guidelines set forth in NYSDOT, by law, USCIS does not have the discretion to ignore binding 
precedent. See 8 C.F. R. § 103. 3(c). The petitioner does not point to any evidence in the record 
showing that her specific work has produced national benefits in the field of education. 
The petitioner asserts that elementary education forms the foundation for subsequent higher levels of 
education. By the plain language of section 203(b)(2)(A) of the Act, a foreign worker is generally 
subject to the job offer requirement (including labor certification) even if that worker's employment 
"will substantially benefit prospectively the ... educational interests .. . of the United States." 
Employment in a beneficial occupation alone, therefore, does not qualify the petitioner for the 
national interest waiver. 
(b)(6)
.-; 
' 
NON-PRECEDENT DECISION 
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Likewise, exceptional ability, defined at 8 C. F.R. § 204. 5(k)(2) as "a degree of expertise 
significantly above that ordinarily encountered" in a given field, is not automatically grounds for 
granting the waiver. Therefore, an elementary school teacher with a degree of expertise significant) y 
above that ordinarily encountered in the field of elementary education would not, as a result, 
necessarily qualify for the waiver. These provisions are found in the statute, and USCI S has no 
discretion to disregard or overrule them. Exceptional ability that will substantially benefit the 
United States is not sufficient grounds for approving the national interest waiver. 
The petitioner asserts that the United States will benefit from "[g]iving, Instructional Teachers a fair 
chance to obtain lawful permanent residence." The national interest waiver is not a standard 
avenue for immigration. It is, rather, a special exemption from the normal requirement of obtaining 
a labor certification. 
The petitioner states: "In my case, prior to coming here in the U. S., I was equipped with education, 
training and experiente which I applied to the underserved, low performing school of 
elementary school, and because of my dedication the progress of my students were [sic] reflected in 
the FCAT [Florida Comprehensive Assessment Test] results." Any objective qualifications which are 
necessary for the performance of the occupation, however, can be articulated in an application for labor 
certification. NYSDOT at 220-221. Furthermore, while the submitted test results show that the 
petitioner was an effective teacher at there is no documentary evidence showing that her 
work has affected the field of education as a whole. 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 petitioner asserts that "new graduates from this country come and go, some lasts [sic] only for a 
month or two, because they are in constant chase of better place of work," but she does not provide 
any academic studies or employment statistics to support the claim. 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 (Assoc. Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Regardless, the 
unavailability of qualified U. S. workers or the amelioration of local labor shortages are not 
considerations in national interest waiver determinations because the labor certification process is 
already in place to address such shortages. NYSDOT at 218. The issue of whether similarly-trained 
workers are available in the U. S. is an issue under the jurisdiction of the U. S. Department of Labor 
through the labor certification process. ld. at 221. In addition, the petitioner asserts that "the labor 
certification process will delay delivery of [her] services to [her] students as well as the continuity of 
the system [she] had implemented," but the timing of the filing (such as the imminent expiration of 
her nonimmigrant status) does not determine eligibility for the waiver. The national interest waiver 
is not just a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. Id. at 223. 
The petitioner states that she helped her students to perform better academically and that motivating 
them to "aspire for college and become professionals" is "the most important outcome of elementary 
teaching. " While the petitioner comments on her effectiveness as a teacher, she does not indicate 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
how her impact or influence as an educator is national in scope. In addition, there is no documentary 
evidence showing that the petitioner's work has influenced the elementary education field. 
The petitioner's asserts that her school administrator at . assigned her "to conduct a seminar 
attended by 36 other teachers in 2011." The August 18, 2011, "Technology Inservice Training" 
workshop offered by the petitioner at provided instruction on the use of 
systems. The record does not show, and the petitioner does not 
state, however, that she developed any of these classroom technologies. Although the petitioner trained 
her colleagues at in the use of the technologies, there is no evidence showing that the 
petitioner has played a role outside her school with respect to the devices. 
The petitioner asserts that her "case is far different from" NYSDOT because that precedent decision 
concerned an engineer rather than a teacher. The core findings in NYSDOT were deliberately broad, 
however, and the three-pronged national interest analytical framework is not limited to engineers. 
In the brief, the petitioner references unpublished decisions for individuals whose national interest 
waiver petitions were approved. Although precedent decisions are binding on all USCIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. See 8 C. F.R. 
§ 103. 3(c). The petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in the unpublished decisions. Without such evidence, the assertion that the 
cases merit the same outcome is unwarranted. 
The petitioner asserts that her case involves "intangible weal th " and the "mind[s] of young people " 
and that she should be "given more time " to convince the service that she is eligible for the waiver. 
Eligibility, however, must be established at the time of filing. 8 C. F.R. § 103.2(b )(1 ), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The petitioner mentions her work at and how she was successful in teaching her students 
mathematics. The petitioner asserts that the recent improvement in student performance at 
proves her superiority to local U. S. workers. She states: "Should there be an U. S. worker of with 
[sic] the same qualifications as I have ... and can generate the same result as I did in the first place, 
I believe this school would not have remained at the bottom when it comes to students [sic] 
performance. " Although the record shows that an overall improvement coincided with the 
petitioner's time at the school, the submitted evidence does not establish that the petitioner was 
largely or solely responsible for that improvement. 
The petitioner further states: "[A] fter 5 years of teaching in this school, I was abJe to fully 
understand the background of my pupils, knowing where they are coming from is very important in 
designing classroom instruction which will answer the needs of the recipient." The petitioner has 
not shown, however, that understanding her students' backgrounds and designing classroom 
instruction to meet their needs are characteristics that differentiate her from similarly qualified 
elementary school teachers. Regardless, there is no evidence demonstrating that the petitioner's 
work has had, or will continue to have, an impact beyond her school. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
The petitioner asserts that raising the level of student performance should be a determining factor for 
the waiver. The national importance of "education" as a concept, or elementary school educators as 
a class, does not establish that the work of one teacher produces benefits that are national in scope. 
NYSDOT at 217, n.3. A local-scale contribution to an overall national effort to improve student 
performance does not meet the NYSDOT threshold. There are no blanket waivers for experienced 
foreign school teachers. users grants national interest waivers on a case-by-case basis, rather than 
establishing blanket waivers for entire fields of specialization . Id. at 217. 
The petitioner correctly mentions that the standard of proof in this matter should be a preponderance of 
the evidence. In most administrative immigration proceedings, the petitioner must prove by a 
preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 
I&N Dec. 369 (AAO 2010). The truth is to be determined not by the quantity of evidence alone but 
by its quality. Id. at 376. In the present matter, the submitted documentation does not demonstrate by 
a preponderance of the evidence that a waiver of the requirement of an approved labor certification will 
be in the national interest of the United States. 
The petitioner's motion includes 2014 Grade 4 reading and mathematics test results for her students at 
her current employer. New evidence is relevant to a motion to 
reopen, but the petitioner's Form I-290B, Notice of Appeal or Motion, and supporting brief do not 
indicate that she has filed a motion to reopen. See 8 C. F.R. § 103. 5(a)(2). Even if we considered the 
petitioner' s filing as a motion to reopen, the 2014 test results postdate the filing of the petition on June 
29, 2012. Again, eligibility must be established at the time of filing. 8 C. F.R. § 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. 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 
(Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
petition." Id. at 176. Accordingly, the submitted test results from 2014 cannot be considered as 
evidence to establish the petitioner's eligibility at the time of filing. Regardless, the submitted test 
results do not show that the petitioner's work has influenced the field of education as a whole rather 
than just her own classroom and school. 
In conclusion, the petitioner has not established that our appellate decision was based on an incorrect 
application of law or users policy. The petitioner has not shown that the work she was engaged in or 
had completed at the time of filing had benefits that were national in scope. In addition, the petitioner 
has not demonstrated that her work had already influenced the field as a whole at the time of filing 
or even as of the date she filed the current motion. Accordingly, the petitioner's motion does not 
overcome the grounds underlying our previous findings. 
The regulation at 8 e.F.R . § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismiss ed. " Accordingly, the motion will be dismissed, the proceedings will not 
be reconsidered, and the previous decision will not be disturbed. 
(b)(6)
I, 
Page 7 
ORDER: 
NON-PRECEDENT DECISION 
The motion to reconsider is dismissed, our April 7, 2014 decision is affirmed, and the 
petition remains denied.