dismissed EB-2 NIW Case: Education

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prevent dearfy unwarranted 
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p'C COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b5- 
FILE: WAC 04 222 5 1017 Office: CALIFORNIA SERVICE CENTER Date: 0 8 2~6 
IN RE: 
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. 8 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
xobert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 222 51017 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
We note that the attorney initially involved with the proceeding was H. Samuel Hernandez. The initial filing 
included Form G-28 Notice of Entry of Appearance as Attorney or Representative, signed by the beneficiary, but 
not by the petitioner. Thus, Mr. Hernandez was never properly designated as the attorney of record. The appeal 
includes a properly executed Form G-28 from present counsel, signed by an official of the petitioning district. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1 153(b)(2), as a member of the professions holding an advanced degree. The petitioner 
is a public school district that wishes to employ the beneficiary as a high school mathematics teacher. 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 beneficiary 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 copies of previously submitted documents and new arguments from counsel. 
Section 203(b) of the Act states in pertinent part that: 
(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 director did not dispute that the beneficiary, who holds a doctorate in education from Brigham Young 
University, 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 
WAC 04 222 51017 
Page 3 
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, 
1Olst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services] 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here 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. 
Jeny Almendariz, a human resources official with the petitioning district, states: 
[The beneficiary] holds full certification as a math teacher in California in the form of a 
professional Clear Single Subject: Math Teaching Credential. Fully-credentialed math 
teachers are a valuable commodity and in short supply in the Inland Empire area of Southern 
California, where communities continue to grow, and subsequent student enrollment 
increases each year. In addition, [the beneficiary] meets federal and state "No Child Left 
Behind" subject matter competency requirements in the area of mathematics. This 
competency will be crucial to continued federal school district funding. 
The demographic area of San Bernardino County and of the [petitioning] District will benefit 
from the continued residence and employment of [the beneficiary]. 
Various witnesses attest to the beneficiary's professional credentials as a math teacher, and to the shortage of 
qualified math teachers in the petitioner's vicinity. One of the beneficiary's former professors at Brigham 
WAC 04 222 51017 
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Young University suggests that the beneficiary "can also influence and help less qualified teachers improve 
their skills for teaching mathematics." 
The controlling precedent decision relating to national interest waivers touches directly on the issue of local 
teacher shortages: "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." Matter of New York State Dept. of Transportation at 217, n.3. More 
generally, a shortage of qualified workers in a given field, regardless of the nature of the occupation, does not 
constitute grounds for a national interest waiver. Given that the labor certification process was designed to 
address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than 
waiving a labor certification. Id. at 2 15,2 18. 
On April 19, 2005, the director issued a notice of intent to deny, stating that "the requested waiver primarily 
rests on . . . a shortage of qualified teachers in the field of Mathematics." The director acknowledged the 
intrinsic merit of teaching math, but found that the petitioner had not established that the beneficiary's work is 
national in scope or that adhering to the labor certification process would be contrary to the national interest. 
The director found that general assertions regarding the beneficiary's competence as a math teacher cannot 
suffice to show that the beneficiary qualifies for the special benefit of a national interest waiver. 
In response to the notice, Mr. Hernandez asserts that the petitioner has addressed the guidelines set forth in 
Matter of New York State Dept. of Transportation. Mr. Hernandez does not acknowledge that precedent 
decision's findings that a local labor shortage does not warrant a waiver, or that a teacher's classroom 
activities generally lack national scope. Mr. Hernandez, in fact, stipulates that "a severe shortage of qualified 
teachers . . . would have ensured approval of a labor certification." 
Mr. Hernandez argues that labor certification is inappropriate because, owing to backlogs at the Department 
of Labor, the beneficiary's H-1B nonimmigrant status will expire before she is able to obtain a labor 
certification, and because "there is now a priority list for individuals from India in some of the employment 
based categories." Thus, by Mr. Hernandez's reasoning, there would be less justification for a waiver if the 
beneficiary had identical credentials but was Portuguese and in her first year as an H-1 B, rather than an Indian 
nearing the expiration of her status. We cannot make the waiver contingent on the beneficiary's nationality or 
on the petitioner's delay in seeking benefits on her behalf. 
Once again, the precedent decision directly addresses the issue: "Nothing in the legislative history suggests 
that the national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to 
avoid the inconvenience of the labor certification process." Id. at 223. 
The waiver is not merely a release valve for an overloaded labor certification system, nor is it a shortcut for 
aliens from countries that tend to exceed their annual immigrant visa allotments. The national interest waiver 
is an additional immigration benefit, rather than simply a supplementary avenue of immigration. If we were 
to find that backlogs or looming expiration dates trigger the national interest waiver, then such a finding 
would create an incentive for last-minute filings; indeed, there would arguably be an incentive for fiivolous 
filings intended solely to further overload the system. The general fact that the demand for visas among 
WAC 04 222 51017 
Page 5 
Indian nationals exceeds the supply does not establish that this one particular alien qualifies for a national 
interest waiver. 
Mr. Hernandez argues that the beneficiary's work is national in scope because "[hligh-quality, first-class 
education has been one of the top priorities at the National Level," as shown by legislation such as the No 
Child Left Behind Act. At issue is not the national scope of education as a whole, but the national scope of 
the activities of one individual schoolteacher. Once again, Mr. Hernandez cites Matter of New York State 
Dept. of Transportation but fails to acknowledge that decision's specific discussion of the national scope (or 
rather the lack thereof) of the work of one schoolteacher. 
Cheryl Henderson, an English Language Development Site leader and language instructor in the petitioning 
district, states: "I believe [the beneficiary's] influence is also important on a national level, particularly 
considering her experience from Missouri and Utah where there are so many Spanish-speaking English 
learners." The beneficiary's own travels or past experience are not what is meant by "national in scope." 
Whatever impact the beneficiary's work may have had in Missouri while the beneficiary was in Missouri, she 
ceased to have impact in Missouri when she moved to a different state. 
Ken Johnson, president of the Association of Colton Educators, states that the beneficiary is a member of the 
California Teachers Association and the National Education Association and, as such, "is part of the larger 
picture dedicated to improving the teaching profession locally, statewide and nationally." The petitioner has 
not shown that the beneficiary is a national-level official of a national organization, or that her activities in 
particular within those organizations have had direct national impact. Therefore, her membership in a 
national organization does not inherently increase the national scope of her work. Once again, the issue is not 
the cumulative impact of thousands of teachers nationwide, but the impact of the beneficiary's own activities. 
The record does not indicate that the beneficiary has, for instance, formulated new educational policies or 
strategies that have been widely implemented outside the petitioning district. 
The director denied the petition, reiterating the grounds specified in the notice of intent to deny, and finding 
that the petitioner has not shown that the beneficiary stands apart from other teachers in a way that warrants a 
special benefit (i.e., the waiver) for which most teachers do not qualify. 
On appeal, counsel asserts: "The only way to have an impact upon education at a national level will be to 
have qualified, highly trained and capable teachers at the local level." This is a fallacious argument. A single 
individual can have a national impact on education in various ways, for instance by publishing influential 
research, by formulating techniques that other jurisdictions adopt as a model, or by serving as a top official of 
a national association or organization. 
While staffing every school with highly qualified teachers would have a cumulative national effect, the 
petitioner has not shown that the approval of this petition would staff every school with highly qualified 
teachers. Rather, the approval of this petition would fill one position at one school. Counsel's argument thus 
implies that being a qualified teacher is, by itself, sufficient grounds for a national interest waiver. We reject 
this argument. By law, members of the professions holding an advanced degree are generally subject to the 
job offer requirement. Also by law, schoolteachers are members of the professions. Thus, to argue that 
WAC 04 222 51017 
Page 6 
Congress did not intend for schoolteachers to be subject to the job offer requirement demands that we 
disregard the plain language of the Act. Congress has established no blanket waiver for schoolteachers. It 
has, however, established a labor certification process and annual limits for the number of new immigrants the 
United States will accept from each country. It defies reason to say that Congress intended the national 
interest waiver as a means for aliens to bypass the clearly-expressed intent of Congress. 
Counsel then repeats the argument that a "critical shortage" of teachers justifies the national interest waiver. 
Leaving aside the relevant sections of Matter of New York State Dept. of Transportation, already cited 
elsewhere in this decision, we must note that the record contains no evidence to support the claim of a worker 
shortage. The labor certification process exists, in part, to test the labor market and verify that such shortages 
do, in fact, exist. The labor certification process is intended to remedy such shortages while curbing abuse by 
denying false claims of shortages. To base a waiver request on unsubstantiated claims of a shortage is, 
essentially, to request the benefits of a labor certification without meeting the burden of proof required to 
qualify for that labor certification. 
Counsel also repeats the claim that the beneficiary should, in effect, be rewarded for coming from an 
oversubscribed nation (India). The beneficiary's nationality has nothing to do with her abilities or 
achievements as a teacher, and the petitioner has presented no evidence that Congress intended for nationality 
to play any role in the national interest waiver process. We note that the waiver, if approved, would not 
exempt the beneficiary from the annual numerical limitations on immigration from India. 
Counsel concludes by arguing that the beneficiary's "employment within an under-served area demonstrates 
the beneficiary's potential to benefit the country on a 'national impact' level." Congress did, in fact, establish 
a blanket national interest waiver for certain physicians in medically underserved areas. See section 
203(b)(2)(B)(ii) of the Act. The existence of this section of law demonstrates that Congress has the authority 
to establish blanket waivers for certain professionals in underserved areas. It remains that, to date, Congress 
has not created a comparable blanket waiver for teachers in underserved areas. We cannot conclude that such 
a waiver is implied in the general language of the statute. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified to 
engage in a profession in the United States should be exempt 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. This denial is without prejudice to the filing of a new petition by a 
United States employer accompanied by a labor certification issued by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.