dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-B-M-V-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 25,2015 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an elementary school teacher, seeks classification as a member of the professions 
holding an advanced degree, and 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. See Section 203(b )(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Director, Texas Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
I. LAW 
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 Director determined that the Petitioner 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. 
(b)(6)
Matter of M-B-M- V-
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 Dep't ofTransp., 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must demonstrate that 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 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 pet1t10ner must 
demonstrate a past record justifies projections of future benefit to the national interest. !d. at 219. 
The petitioner's assurance that she will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the petitioner, rather than to facilitate the entry of a foreign national with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
II. PERTINENT FACTS AND PROCEDURAL HISTORY 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 19, 2013, at which 
time she was working as a kindergarten teacher for 
in Maryland. The record indicates that she holds Master's degrees in Elementary Education and 
Special Education and has worked for since 2007, having previously taught elementary 
school in the Philippines since 1982. 
Documentation supporting the Form I-140 included evidence of the Petitioner's credentials and a 
"Narrative Resume" in which she provided a detailed description of her training and experience. 
She submitted copies of certificates and awards she received during her education and employment, 
including "Resourceful Teacher of the Month," "Innovator and Creative Strategies Award," "The 
Resourceful Teacher Award," and a five year service award from her former employer, _ 
a certificate of scholarship from her university, and an "Outstanding Service" certificate 
from the 
2 
(b)(6)
Matter of M-B-M- V-
Supporting evidence also included copies of letters from the Petitioner's current and former 
colleagues, supervisors, and students, attesting to her dedication and effectiveness as a teacher. 1 For 
instance, principal of , stated in a November 16, 
2011, letter that the Petitioner "is an asset to '' and that most of her students are 
performing at or above grade level. In a November 7, 2011, letter, assistant 
principal of indicated that the Petitioner was an "exceptional 
educator" 
with integrity who was "well 
read and abreast on the latest trends, developments, methods, 
and techniques in her field of study." concluded that the Petitioner supported school­
wide projects and was enthusiastic about taking on leadership roles. Each of the letters praised the 
Petitioner's work ethic 
and teaching techniques. 
In addition, the Petitioner submitted evidence that she was featured in an August 3, 2008, 
article, about extensive hiring of 
teachers from the Philippines and the sacrifices made by those teachers. That piece was summarized 
in a second article, " published in on 
2008. The Petitioner provided copies of personal letters she received in response to the articles. 
The Director issued a request for evidence (RFE) on May 14, 2014, requesting additional 
documentation to establish the Petitioner's eligibility under the analysis set forth in NYSDOT. She 
was asked, in part, to confirm that her work "will impart national-level benefits," and that she has a 
past record of specific prior achievement with some degree of influence on the field as a whole. 
In a letter responding to the RFE, the Petitioner cited the No Child Left Behind Act of 2001 
(NCLBA), Pub. L. 107-110, 115 Stat. 1425 (Jan. 8, 2002), and recent federal education initiatives, as 
evidence that "closing the achievement gap" is a national priority. She asserted that as a "Highly 
Qualified Teacher" under NCLBA, she "plays a primary role" in achieving that goal. She further 
explained that her proposed employment would "benefit the U.S. economy" and "improve 
education." In a separate personal statement, the Petitioner indicated that her work offers "the 
potential for a marked improvement in literacy among students that will result in more high school 
graduates and career-ready individuals." The RFE response 
letter also maintained that the NCLBA 
"trumps the Labor Certificate" because, if successful, it will lead to greater student achievement and 
"eventually eliminate competition from foreign workers." 
The Petitioner submitted new letters from two colleagues who previously wrote on her 
behalf, each of whom confirmed that her teaching has had a positive impact on her students' 
achievement. In support of these statements, she provided 2014 testing data showing her 
kindergarten class' performance in language arts over the course of the year. The RFE response also 
included articles about the importance of math and science education and a shortage of special 
1 While we discuss only a sampling of these letters, we have reviewed and considered each one, although we note that 
the letter from Assistant Principal of is unsigned and, accordingly, has 
little evidentiary value. Regardless, that letter is similar to the ones quoted in this decision. 
3 
Matter ofM-B-M-V-
education teachers, and documentation relating to the education laws and policies discussed in the 
Petitioner's letter. 
On November 3, 2014, the Director denied the Form I-140, finding that the Petitioner did not show 
the proposed benefits of her work are national in scope or demonstrate a past record of achievement 
with a degree of influence on the field as a whole. The Director therefore concluded that she had not 
established that an exemption from the requirement of a job offer and labor certification would be in 
the national interest of the United States. 
In her brief on appeal, the Petitioner states that U.S. Citizenship and Immigration Services (USCIS) 
"erred in giving insufficient weight to the national educational interests enunciated in the [NCLBA] 
as the guiding principle rather than [NYSDOI]." She notes that Congress passed the NCLBA three 
years after the issuance of NYSDOT as a precedent decision, and asserts that it did so "to serve as 
guidance to USCIS in granting legal residence to 'Highly Qualified Teachers."' According to the 
Petitioner, "the [NCLBA] and the Obama Education Programs, taken collectively, provide the 
underlying context for the adjudication of a national interest waiver application made in conjunction 
with an E21 visa petition for employment as a Highly Qualified Teacher in the public education 
sector." 
The brief alternately asserts that the record establishes the Petitioner's eligibility under the NYSDOT 
framework. It states that the proposed benefit of her work is national in scope because she will serve 
"the national educational interest of closing the achievement gap," and that she has provided 
"overwhelming evidence" of her past achievements. The brief further maintains that factors such as 
"the 'Privacy Act' protecting private individuals" make it "impossible" for the Petitioner to produce 
material comparing herself to other qualified workers, and that the Director's application of the third 
prong of NYSDOT is "tantamount to [requiring] extraordinary ability," a separate visa classification 
with its own evidentiary requirements. 
III. ANALYSIS 
With regard to the applicability of the NYSDOT analysis, the Petitioner provides no support for the 
assertion that the NCLBA modified or superseded that precedent decision with regard to teachers. 
She identifies no specific legislative or regulatory provisions that exempt educators from NYSDOT 
or reduce its impact on them, and she cites no direct support for the claim that Congress intended for 
the NCLBA to affect the adjudication of national interest waiver applications. In contrast, section 5 
of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (Nov. 12, 1999), 
specifically amended the Act by adding section 203(b )(2)(B)(ii) to create special waiver provisions 
for certain physicians. The Petitioner has not shown that the NCLBA contains a similar legislative 
change. As USCIS does not have discretion to ignore binding precedent under 8 C.F.R. § 103.3(c), 
the Petitioner's eligibility must be determined according to the analysis set forth in NYSDOT. 
We find the Petitioner has not shown that the benefits of her proposed work are national in scope. 
As discussed above, she affirms that her work will further the national interest of "closing the 
achievement gap." The federal education statutes and initiatives cited by the Petitioner address the 
4 
Matter of M-B-M- V-
intrinsic merit of education, which the Director did not dispute, and they describe national goals. 
They do not, however, state or imply that the work of one teacher significantly contributes to those 
goals, nor has the Petitioner demonstrated that her work as an individual will further those objectives 
on a nationally significant level. This finding is consistent with NYSDOT, which cited an elementary 
school teacher as an example of a meritorious occupation that would lack the requisite national 
scope to establish eligibility. 
Finally, under the third prong of the NYSDOT analysis, a petitioner must demonstrate 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 218. Such a demonstration does not, as the 
Petitioner contends, require specific evidence of the accomplishments of other individuals in her 
field, nor does it require her to meet evidentiary requirements for extraordinary ability, as found at 8 
C.P.R. § 204.5(h)(3). Rather, a petitioner must have a past record that "justifies projections of future 
benefit to the national interest" by showing that he or she has had "some degree of influence on the 
field as a whole." !d. at 219, n. 6. In this instance, the petitioner has submitted documentation of her 
work at the local level, including letters and testing data that reflect the positive impact she has had 
on her own students. The record does not establish, however, that she has had a broader influence 
within her field. 
IV. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced 
degree professional or individual of exceptional ability should be exempt from the requirement of a 
job offer based on national interest. For the reasons discussed above, we find the record insufficient 
to confirm that either the scope of the Petitioner's proposed work or her past record of achievement 
is at a level sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the Petitioner. While a petitioner need not demonstrate notoriety on the 
scale of national acclaim, the national interest waiver contemplates that his or her influence be 
national in scope. NYSDOT, 22 I&N Dec. at 217, n.3. Considering the record, the Petitioner has not 
established 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 appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-B-M-V-, ID# 14525 (AAO Nov. 25, 2015)