dismissed EB-2 NIW Case: Education

MATTER OF N-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a university instructor and multicultural education researcher, seeks classification as 
a member of the professions holding an advanced degree. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of 
the job offer requirement that is normally attached to this immigrant classification. See 
§ 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, but that she 
had not established that a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In her appeal, the Petitioner argues that the proposed benefit 
of her work will be national in scope and that she will serve the national interest to a substantially 
greater degree than would an available U.S. worker having the same minimum qualifications. The 
Petitioner submits additional letters of support, teaching evaluations, university enrollment reports, 
and statistics reflecting the number of students she has taught. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility Jor a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification normally requires 
that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) ofthe Act states, in pertinent part: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability.-
Matter of N-K-
(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) National interest waiver .... the Attorney General1 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. 
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). 
Matter of New York State Department 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 demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a· petitioner must show that 
the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must 
establish that he or 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. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. !d. at 219, n.6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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II. ANALYSIS 
The Petitioner received her Ph.D. in Curriculum and Instruction from the in 
2013. The Director determined 
that the Petitioner qualified 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 according to the three­
pronged analysis set forth in NYSDOT. 
A. Substantial Intrinsic Merit 
The Petitioner seeks to continue her work as an instructor on the faculties of the 
and She submitted documentation showing that her teaching activities 
and research concerning multicultural education are in areas of , substantial intrinsic merit. 
Accordingly, the record supports the Director's determination 
that the Petitioner meets the first 
prong of the NYSDOT national interest analysis. 
B. National in Scope 
The Petitioner provided evidence of her activities as an instructor and educational researcher. The 
Director determined that the Petitioner's instructional activities as a university professor would not 
impart national level benefits. The Director cited to NYSDOT, 22 I&N Dec. at 21 7, n.3 which 
mentions the limited scope "of a single schoolteacher in one elementary school." While the 
Petitioner's appellate submission includes statistics indicating the number of students who attended her 
courses at the there is no evidence establishing that the benefits of her 
instruction would extend beyond her students and universities such that they will have a national 
effect. Classroom teaching and online academic instruction, while important to individual students and 
to the institution at which it occurs, does not rise to the level ofhaving national scope to merit a waiver 
of the job offer requirement. Therefore, we concur with the Director's determination that the benefit of 
the Petitioner's instructional activities would not be national in scope. 
With respect to her activities as an educational researcher, however, we find that the proposed 
benefit of the Petitioner's work does have national scope. The Director noted that the Petitioner has 
authored scholarly work, but concluded that it would not impart national level benefits. On appeal, 
the Petitioner submits 
letters from faculty at the discussing her research 
concerning multicultural and linguistically diverse students and its potential benefit to the nation. 
The record includes evidence indicating that the proposed benefit of her multicultural education 
research has national and international impact, as the results from her work are disseminated to 
others in the field through publication in education journals. Accordingly, we find that the proposed 
benefit of the Petitioner's educational research is national in scope, and the Director's determination 
on this issue is withdrawn. 
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Matter of N-K-
C. Serving the National Interest 
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. The Director 
determined that the Petitioner's impact and influence on h~r field did not satisfy the third prong of the 
NYSDOT national interest analysis. 
In addition to documentation of her research articles, conference participation, alumni and honor 
society memberships, graduate assistantships, employment verifications, teaching evaluations, and 
academic credentials, the Petitioner submitted various reference letters discussing her work in the 
field. For example, professor of statistics and research methodology, 
indicated that the Petitioner's research offers new strategies, tools and 
training sessions that "may be adopted and considered by teacher education program planners" to 
help teachers become culturally responsive when teaching second language learners. 
however, did not offer any examples of school systems that have implemented the Petitioner's 
approaches or of how her work has otherwise affected the field as a whole. 
professor of sociology at the stated: "[The Petitioner] 
currently has several articles under review from her dissertation for publication in education 
literature. I fully expect these will result in important scholarly work .... " The record includes 
copies of the Petitioner's articles, but there is no evidence showing that they had been published at 
the time of filing the Form I-140, Immigrant Petition for Alien Worker, on July 29, 2014. 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). Accordingly, we cannot consider the Petitioner's research 
findings that were not yet published as of the filing date, and thus had not been disseminated in the 
field, to establish her eligibility at the time of filing. 
associate superintendent of the Arkansas public school district, noted 
that the Petitioner collaborated with the school district when performing research for her doctoral 
dissertation. explained that the Petitioner's "research is bringing more in-depth 
understanding and new findings related to the issues toward teacher attitudes, as well as, proposing 
potential solutions to improving the attitude of teachers in working with culturally diverse students." 
While mentioned that the Petitioner's "research has contributed significantly to the 
literature on how educators can better inform their practice," she does not identify any school 
districts that have adopted the Petitioner's methodologies or findings at a level commensurate with 
impact on the field as a whole. 
professor and chair of the department of political science at the 
explained that the Petitioner's research will "provide school administrators with concrete 
guidelines to design effective programs or workshops that can assist subject area teachers with 
models and tools to implement a culturally appropriate curriculum," but there is no documentary 
evidence demonstrating that her research has already altered instructional practices, curricula, or 
teaching guidelines in the field of multicultural education. Although the Petitioner's Ph.D. research 
has value, any research must be original and likely to present some benefit if it is to receive funding 
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(b)(6)
Matter ofN-K-
and attention from the academic or scientific communjty. In order for a university, publisher, or 
grantor to accept any research for. graduation, publication, or funding, the research must offer new 
and useful information to the pool of knowledge. Not every graduate student who performs original 
research that adds to the general pool of knowledge in the field inherently serves the national interest 
to an extent that is indicative of influence on the field as a whole. 
associate professor of English education, noted that 
the Petitioner "proposed a new technical way in research by employing critical ethnographic 
methodology to acknowledge the ideological structures and values behind the sensitivity to diversity 
in 
the education system," but did not provide any examples of how the her approach has affected the 
field as a whole. In addition, an assistant professor at the 
indicated that the Petitioner "has excellent research skills and abilities in conducting 
mixed methods research techniques." A statement that a petitioner possesses useful skills or 
experience relates to whether similarly-trained workers are available in the United States and falls 
under the jurisdiction of the U.S. Department of Labor through the labor certification process. See 
NYSDOT, 22 'I&N Dec. at 221. 
and both mentioned that the Petitioner has performed proofreading and 
editing for their scholarly articles, but there is no evidence demonstrating that such informal peer 
review is indicative of influence in the education field. The Petitioner has not established that her 
occasional participation as a reviewer of her colleagues' work is an indication that she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
' 
university professor in the department of sociology and criminal justice at the 
stated that the Petitioner's "research provides subject area teachers with 
models, skills, and tools to implement a culturally responsive curriculum. Her work helps lessen the 
achievement gap in today's classroom and reduces schools' dropout rates of CLD [culturally and 
linguistically diverse] students." The Petitioner, however, has not shown that her findings or 
proposed methodologies have closed the achievement gap or reduced CLD dropout rates in any U.S. 
school systems, or have otherwise influenced the field as a whole. 
a professor in the department of curriculum and instruction at the 
explained that the Petitioner's "research will assist teacher education programs, school 
districts, and schools' administrations in designing and planning more effective programs and 
workshops that provide teachers with models, skills and tools to implement a culturally responsive 
curriculum," but did not indicate how her findings have already affected the field of multicultural 
education. Similarly, professor emeritus at the 
indicated that the Petitioner "is in a unique position to develop training material~ for teachers that 
could have major impact." While and attested to the potential impact of the 
Petitioner's work, they did not offer any examples indicating that her work already has been 
implemented in various school systems, has been incorporated into teacher training materials, or has 
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otherwise influenced the field as a whole. Again, eligibility must be established at the time of filing. 
8 C.F.R. § 103.2(b)(1), (12); Matter ofKatigbak, 14 I&N Dec. at 49. 
With respect to the Petitioner's teaching activities, an instructor and 
laboratory supervisor in the department of chemistry and biochemistry at the 
noted that the Petitioner "has taught courses from the freshman level through sophomore level and 
always teaches lectures that are tailored to the students that are in the class." The record includes 
student survey results and teacher performance evaluations that show the Petitioner's effectiveness 
as an instructor at the and but the submitted evidence 
does not indicate that she has had the wider impact and influence necessary to qualify for the 
national interest waiver under the Act or regulation as framed by NYSDOT. 
The Petitioner submitted letters of varying probative value. We have addressed the specific 
affirmations above. Generalized conclusory statements that do not identifY specific contributions or 
their impact in the field have little probative value. See 1756, Inc. v. US. Att 'y Gen., 745 F. Supp. 9, 
15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions in immigration 
benefits adjudications). In addition, uncorroborated statements are insufficient. See Visinscaia v. 
Beers, 4 F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field); see also Matter of Caron Int '1, Inc., 19 I&N 
Dec. 791, 795 (Comm'r 1988) (holding that an agency "may, in its discretion, use as advisory 
opinions statements ... submitted in evidence as expert testimony," but is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought and "is not 
required to accept or may give less weight'' to evidence that is "in any way questionable"). The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
USC IS may evaluate the content of those letters as to whether they support the petitioner's 
eligibility. !d. See also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert 
opinion testimony does not purport to be evidence as to "fact"). As the submitted reference letters 
did not establish that the Petitioner's work has influenced the field as a whole, they do not 
demonstr,ate her eligibility for the national interest waiver. 
In the appeal brief, the Petitioner summarizes the various findings from her research papers. 
Regarding her research findings, there is no presumption that every scholarly article demonstrates 
influence on the field as a whole; rather, the Petitioner must document the actual impact of her 
findings. In this instance, there is no evidence showing that once disseminated through publication 
or presentation, the Petitioner's work has garnered a significant number of independent citations or 
that her findings have otherwise affected the field of multicultural education as a whole. 
Furthermore, the Petitioner points to her design of a '' for the 
and her "overview of how is used in teacher education 
programs," bu~her references do not specifically mention this work or explain its effect on the field 
of multicultural education. Regardless, there IS no documentary evidence reflecting that the 
Petitioner's and overview have influenced the 
field as a whole. 
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Matter ojN-K-
III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the Petitioner has not established by a 
preponderance of the evidence that she has a past record of demonstrable achievement with some 
degree of influence on the field as a whole or that she will otherwise serve the national interest to a 
substantially greater degree than would an ava~lable U.S. worker having the same minimum 
qualifications. Therefore, the Petitioner has not demonstrated that a waiver of the job offer 
requirement will be in the national interest of the United States. The burden is on the Petitioner to 
show eligibility for the immigration benefit sought. Section 291 ofthe 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. 
Accordingly, the. appeal will be dismissed. . 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-K-, ID# 8771 (AAO Sept. 12, 2016)