dismissed EB-2 NIW Case: Education

MATTER OF A-D-F-M-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 10,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a kindergarten teacher, 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 she satisfies the 
national interest waiver requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
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) of the Act states, in pertinent part: 
(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 
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Matter of A-D-F-M-
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., II (1989). 
Matter ofNelcv York State Department ofTramportation, 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. 
II. ANALYSIS 
The Petitioner submitted evidence that she received a bachelor of elementary education degree from 
in the Philippines in 1991. In addition, the Petitioner provided a January 27, 
2012, ''Expert Opinion Evaluation" report prepared by professor of operations 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("'HSA"), Pub. L. No. I 07-296, 116 Stat. 2135. 2311 
(codified at 6 U .S.C. § 557 (20 12 )), 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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management and management science. stating that she has ""[a ]t least 
nineteen years of post-baccalaureate progressive work experience in education." The Director 
determined that the Petitioner had more than five years of progressive post-baccalaureate experience 
equivalent to an advanced degree under the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). and that she 
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 Nl:'lDOT. 
A. Substantial Intrinsic Merit 
The Petitioner submitted documentation showing that her work as a school teacher for 
is in an area 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 Director found that the proposed benefit of the Petitioner's work as a school teacher with 
would not be national in scope. With regard to the Petitioner's teaching duties, there is no 
evidence establishing that the benefits of her work would extend beyond her students and school 
district such that they will have a national impact. NYSDOT provides examples of employment 
where the benefits would not be national in scope: 
For instance, pro bono legal services as a whole serve the national interest but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national 
interest, the impact of a single school teacher 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. As another example, while nutrition has obvious intrinsic 
value. the work of one cook in one restaurant could not be considered sufficiently in 
the national interest for purposes of this provision of the Act. 
ld at 217, n.3. In the present matter. the Petitioner has not shown the benefits of her impact as a 
kindergarten teacher beyond and, therefore, that her proposed benefits are national in scope. 
On appeal, the Petitioner quotes NYSDOT at 217. n.3 regarding the limited scope of elementary 
school teachers, and expresses her disagreement with the quoted passage. Nevertheless, she 
acknowledges NYSDOTs 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. ld. With 
regard to following the guidelines set forth in NYSDOT, the regulation at 8 C.F .R. § 103 .3( c) 
provides that precedent decisions are binding on all USCIS employees in the administration of the 
Act. 
In addition, the Petitioner states: "'Every single schoolteacher plays a special role to the nation 
through the education of the young. Even if two school teachers have similar qualifications, each 
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Matter of A-D-F-M-
always has a unique impact to the nation.'' The record, however, does not show how the Petitioner's 
work as a kindergarten teacher will impact the field beyond her school district. The Petitioner does 
not point to any evidence in the record indicating that her specific work will produce national 
benefits in the field of education. Accordingly. the Petitioner has not established that she meets the 
second prong of the NYSDOT national interest analysis. 
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 her field did not satisfy the third prong of the 
NYSDOT national interest analysis. 
On appeal, the Petitioner states that •'the testimonial letters from administrators. teachers. students 
and parents" reflect ""the significant impact of [her] work in the witnesses' professions." The 
Petitioner also contends that the letters "disclosed how her teaching contributions arc implemented 
by the administrators, colleagues and the rest of the school community,'' but she did not identify any 
statements discussing the impact of her work on the field as a whole or explaining how her specific 
teaching methodologies are being widely implemented by others in the field of elementary 
education. 
The Petitioner previously submitted letters of support from teachers and administrators who worked 
with her at and 
In addition, the Petitioner provided letters from her pupils at those schools and 
their parents. The references attested to the Petitioner's talent, dedication, and contributions to her 
schools, but they did not indicate that she has had the wider impact and influence necessary to 
qualify for the national interest waiver under NYSDOT. 
For example, principal of listed 
the Petitioner's job duties and stated that she has worked •'to help raise student achievement" at the 
school, but did not describe how the Petitioner's work has affected the field as a whole. Similarly. 
director of (fom1crly 
mentioned that the Petitioner ""was responsible for implementing 
the school's curriculum for Grade 1-3" and described her teaching responsibilities. While 
indicated that the Petitioner ·'generously shared materials with other teachers on how best to 
encourage children to write," there is no documentary evidence showing that the Petitioner's work 
has had an impact beyond the schools where she has taught or has otherwise influenced the field as a 
whole. Finally, assistant principaL 
discussed the Petitioner's ""excellent rapport with other teachers and administrators,'' 
''seriousness in the way she carries on her teaching career," "excellent academic background," her 
''genuine love for teaching children," "integrity in speech and action," and devotion to the school's 
ideals. but did not provide any specific examples of how the Petitioner's work has int1uenced the 
field of elementary education as a whole. 
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Matter of A-D-F-M-
The Petitioner provided a letter from kindergarten chair at 
stating that the Petitioner is a valuable part of the kindergarten team at the 
school and that the team ''has been chosen as a teaching team for 
further noted that other kindergarten teachers in the county ''who are having difficulties are 
sent to the team in order to receive information that may help them become more etTective 
educators." Although indicated that the Petitioner's expertise is "beneficial to the 
students and teacher[s] of the county:' she did not explain how the Petitioner's work on the team ha~ 
affected teaching practices outside of or has otherwise influenced the field as a whole. 
In the statement she provided in support her appeal, the Pejitioncr also mentions her teaching 
qualifications and awards. The Petitioner previously submitted her academic records, employment 
verifications, her teaching license tor 
''Teacher of the Year'' award ( 1997) from 
"Principal's Award" (2012) from 
and 
Educational degrees. occupational experience, licenses and professional certifications, membership 
in professional associations. and recognition for achievements arc elements that can contribute 
toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), (E), and (F), 
respectively. However, in this instance the Petitioner is seeking a waiver of the job offer as a 
member of the professions holding an advanced degree. We note that the 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. Pursuant to section 203(b )(2)(A) of the Act, 
individuals of exceptional ability are generally subject to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. NYS'DOT, 22 I&N Dec. at 
218, 222. Therefore, whether a given individual seeks classification as an alien of exceptional 
ability, or as a member of the professions holding an advanced degree. that individual cannot qualify 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily 
encountered in her field of expertise. The national interest waiver is an additional benefit separate 
from the classification sought, and therefore eligibility for the underlying classification does not 
demonstrate eligibility for the additional benefit of the waiver. Without evidence demonstrating that 
the Petitioner's work has affected the field as a whole, employment in a beneficial occupation such 
as a teacher, therefore, does not by itself qualify her 
for the national interest waiver. 
Particularly significant awards may serve as evidence of the Petitioner's impact and influence on her 
field, but she has not demonstrated that the awards she received have more than local or institutional 
significance. In addition, the Petitioner previously submitted various certificates of participation and 
completion for training courses and seminars relating to her professional development. While taking 
courses and attending seminars are ways to increase one's professional knowledge and to improve as 
a teacher, there is nothing inherent in these activities to establish eligibility for the national interest 
WaiVer. 
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Matter of A-D-F-M-
Furthermore, the Petitioner provided copies of her performance evaluations from 
from 2009-2014. The Petitioner, however, does not indicate how the submitted 
evaluations demonstrate that she has influenced the field to a substantially greater degree than other 
similary qualified elementary school teachers and how her specific work has had significant impact 
outside of 
In light of the above, the Petitioner has not established that she meets the third prong of the NYSDOT 
national interest analysis. 
III. CONCLUSION 
Considering the letters of support and other evidence in the aggregate, the Petitioner has not shown 
that the proposed benefits of her work are national in scope. In addition, the Petitioner has not 
established that her past record of achievement is at a level that would justifY a waiver of the job offer 
requirement. The record does not establish that the Petitioner's work has influenced the field as a 
whole or that she will otherwise serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. A petitioner need not demonstrate 
notoriety on the scale of national acclaim, but the national interest waiver contemplates that her 
influence be national in scope. NY5)DOT, 22 I&N Dec. at 217, n.3. More specifically, she "must 
clearly present a significant benefit to the field of endeavor." !d. at 218. See also id. at 219, n.6 (the 
individual must have ·'a past history of demonstrable achievement with some degree of influence on the 
field as a whole''). 
A plain reading of the statute indicates that engaging in a profession (such as teaching) does not 
presumptively exempt such professionals 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. 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 petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-D-F-M-, ID# 16890 (AAO June 10, 2016)