dismissed EB-2 NIW Case: Education

US. Department of Homeland Security 
U.S. Citizenshiv and Immigration Services 
- 
ldontiflring data deleted to 
 Ofice ofAdmrnrstratrve Appeals MS 2090 
Washmgton, DC 20529-2090 
prevent clearly unwarranted 
invasion of persomL privacy 
 U.S. Citizenship and Immigration 
Services 
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. 5 1153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
ohn F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a mathematics teacher at Bloomington High School, Colton, California. 
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 has 
not established that she qualifies for classification as a member of the professions holding an advanced 
degree, or 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 a brief from counsel. 
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 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 petitioner filed the petition on August 6, 2007. 
 The first issue concerns the petitioner's 
eligibility for classification as a member of the professions holding an advanced degree. The U.S. 
Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. 5 204.5(k)(2) defines 
"profession" as "Profession means one of the occupations listed in section 10l(a)(32) of the Act, as 
well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation." School teachers are listed in section 
101(a)(32) of the Act, and therefore the petitioner qualifies as a member of the professions. 
8 C.F.R. 8 204.5(k)(3)(i) requires that, to show that the alien is a professional holding an advanced 
degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
The petitioner holds United States advanced degrees - specifically, a master's degree in Education 
from Drury College, Springfield, Missouri, and a doctorate in Education from Brigham Young 
University, Provo, Utah. At issue is the director's finding that "[a]lthough the petitioner holds an 
advanced degree, the position does not appear to require one." 
The director, in reaching the above conclusion, apparently relied on this passage from 8 C.F.R. 
§ 204.5(k)(4)(i): "The job offer portion of the individual labor certification, Schedule A application, 
or Pilot Program application must demonstrate that the job requires a professional holding an 
advanced degree or the equivalent." That requirement, however, only applies to petitions that 
include an individual labor certification, Schedule A application or Pilot Program application - all 
documents relating to the job offer requirement. Because the petitioner seeks a waiver of the job 
offer requirement, she is not required to submit any of the forms named above. Petitions with 
waiver requests fall under 8 C.F.R. § 204.5(k)(4)(ii). The petitioner need only establish that the 
occupation meets the regulatory definition of a profession, and that she holds an advanced degree or 
its defined equivalent. The petitioner has met both of these requirements. We therefore withdraw 
the director's finding that the petitioner does not qualify as a member of the professions holding an 
advanced degree. 
The second and final 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 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 USCIS] believes it appropriate to leave the application of this test 
as flexible as possible, although clearly an alien seeking to meet the [national interest] 
Page 4 
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 (Cornrnr. 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 hture benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the hture, 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. 
We also note that the regulation at 8 C.F.R. tj 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification 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. 
In a letter accompanying the initial filing of the petition, the petitioner noted "an increasing demand for 
Math teachers in the United States," and claimed "computer research based teaching skills and 
international experience in math teaching which many US citizens do not possess." 
Principal of Bloomington High School, also cited the "national shortage of math 
teachers" and asserted that the etitioner is "a top-flight math teacher." With regard to the petitioner's 
duties and activities, - stated that the beneficiary's "assignments at Bloomington High 
School include three geometry classes and two Algebra 2 classes." Other Bloomington teachers and 
administrators attested to the petitioner's credentials and skill as a teacher. 
as "a dedicated secondary level mathematics teacher (an area of teaching shortage)." 
- of Brigham Young University's Department of Teacher Education 
stated that the petitioner "is a qualified, knowledgeable, skilled and experienced secondary education 
mathematics teacher who successfully guides students to learn and apply mathematics to their lives." 
stated that the petitioner "has unique mathematical knowledge and skills and teaching 
experiences that most aliens, and even US citizens, do not possess." 
None of the initial witnesses indicated that the petitioner's work as a teacher is national in scope, or has 
any direct impact outside of Bloomington High School. Instead, the witnesses focused on the overall 
merits of math instruction, assertions of a shortage of math teachers, and the petitioner's performance at 
Bloomington. The work of a classroom teacher is generally local rather than national in scope. CJ: 
Matter of New York State Dept. of Transportation at 217, n.3. We are not indifferent to witnesses' 
assertions about a shortage of qualified teachers, but the labor certification process exists as a means to 
address such shortages. Id. at 2 18. 
On November 6,2008, the director advised the petitioner of the guidelines found in Matter of New York 
State Dept. of Transportation and instructed the petitioner to establish that the petitioner's work is 
national in scope, and will serve the national interest to a substantially greater extent than other qualified 
high school math teachers. 
In response to the director's notice, as evidence that the petitioner's work is national in scope, the 
petitioner submitted a copy of a 1992 research paper she wrote as a graduate student. Counsel asserted 
that the method the petitioner outlined in that paper "is currently being successfully used at 
[Bloomington and] . . . is being referred to and distributed in other high schools and can be used in any 
state of the United States." The purpose of the research paper, according to page 2 of the paper itself, 
was "to examine and collect information fiom published research on cooperative learning in order to 
use for my teaching mathematics to the elementary school children in India." A survey of published 
research is not the same thing as the development of an influential new teaching method. The record 
contains no evidence that the petitioner's research paper was ever published, let alone that it has 
influenced other teachers. 
Counsel also asserted that the petitioner prepared instructional guides in Geometry and Algebra 1, 
which are "being implemented in other high school settings. . . . [Tlhese instructional guides are 
sufficient to become a model in other jurisdictions of any state [and] therefore will be implemented as 
national level teaching guides." The petitioner submitted no evidence that the petitioner's guides "will 
be implemented as national level teaching guides," or that the petitioner has developed original teaching 
methods that other schools have adopted. The observation that other schools could, in theory, adopt the 
petitioner's teaching guides is not evidence that national implementation "will" happen. The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1 988); Matter of laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1 983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner has not shown how her instructional guides 
are fundamentally different from the lesson plans or curricula that all teachers must formulate as part of 
their basic duties as teachers. 
The director denied the petition on January 15, 2009. The director acknowledged the intrinsic merit of 
education, but stated that the petitioner's work lacks national scope because "[tlhe record is devoid of 
any evidence to establish that the scope of her work goes beyond the students at Banning [sic] High 
School." The director found no evidence that the petitioner's work has had any influence beyond her 
own classroom. 
On appeal, counsel repeats the claim that the petitioner's graduate research paper outlined a "teaching 
technique [that] is being referred to and distributed in several high schools and can be used in any of the 
United States," and that the petitioner's instructional guides "are being implemented in other high 
school settings." As before, counsel has provided no evidence at all to support these claims. Counsel 
has not even identified the other schools that purportedly use the petitioner's techniques. Instead of 
providing any evidence of any kind to support these claims, counsel has simply repeated those claims 
under the heading "Statement of Facts." Arbitrarily labeling an unsupported claim as a "fact" does not 
and can never give that claim the weight of accepted fact. 
Counsel notes that USCIS has previously held that "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." The petitioner, however, has not shown that she has done any of these things, nor are 
any of them typical job requirements for a high school math teacher that can be considered a routine 
part of the occupation. The evidence of record consistently limits the scope of the petitioner's work to 
the school where she works. 
Even if the petitioner had actually established the national scope of her work, which she has not 
done, intrinsic merit and national scope do not, by themselves, establish eligibility for the national 
interest waiver. The petitioner must also establish a record of achievements and influence that 
would justify projections of future benefit to the United States. The petitioner has not done this; she 
has established only that she is a valued employee of a local high school. Vague and subjective 
praise for her mathematical or pedagogical talents cannot suffice in this regard. 
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. 5 1361. The petitioner has not sustained that burden. This decision 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.