dismissed EB-2 NIW Case: Educational Psychology

identiQing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PIJBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 09 019 53245 
 APR 1 6 2010 
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 1 153(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). 
u 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas 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. 
 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner claims to be employed as a market research analyst, but the petition rests on her training in 
educational psychology. 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 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 a brief from counsel, two articles, and two new witness letters. 
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 did not dispute 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. 
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, 10 1 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 U.S. 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 (Comrnr. 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(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. 
The petitioner filed the petition on October 27, 2008. On the Form 1-140 petition, the petitioner stated 
her occupation as "Market Research Analyst." Other materials in the record identified her employer as 
In a statement submitted with the initial filing of the petition, counsel stated: 
[The petitioner] is a professional educational psychologist whose work, education, and 
experience are primarily focused in the areas of education, psychology, with a 
prospective future in the area of psychometrics. . . . 
Psychometrics is the field of study concerned with the theory and technique of 
educational and psychological measurement. It is primarily concerned with the study of 
measurement instruments such as questionnaires and tests. Psychometricians create the 
standardized tests by which our nation relies on [sic] to ensure a consistent and 
progressive educational system in grade school. . . . 
In the instant matter, Beneficiary is a well-respected educational psychologist bearing 
degrees ranging from a prestigious university in Taiwan to world-renown institutions in 
the United States such as Harvard University and the University of Texas at Austin. Her 
research and contributions to educational psychology, has [sic] earned her the praise of 
colleagues and former professors. 
. . . Labor certifications are designed to determine if there are U.S. workers with minimal 
qualifications to meet a job need. There is no claim that psychometricians must all be 
geniuses or Ivy League graduates, however if only "minimally qualified" workers were 
to fill this position to create these standardized tests, a prospective employer would be 
deprived of the services of the Beneficiary who can serve the national interest to a 
substantially greater degree. 
It would be contrary to the national interest to potentially deprive a prospective 
employer of the services of the Beneficiary by making psychometric researchers a 
minimally qualified position via labor certification. 
The intended meaning of the last quoted sentence is not clear. The labor certification process does not 
make any given position "a minimally qualified position." Also, counsel did not explain why the 
petitioner "can serve the national interest to a substantially greater degree" than a qualified United 
States worker. (The labor certification process does not require the hiring of underqualified or 
unqualified workers; such workers, by definition, are not minimally qualified.) The petitioner's 
educational background does not presumptively qualify her for the waiver, any more than degrees from 
more obscure schools would disqualify an alien seeking the waiver. The assertions that the petitioner is 
"respected" and has "earned . . . praise" are too vague to be of use. 
On her curriculum vitae, the petitioner claimed experience as a teacher and as a writer of lesson plans, 
but she claimed no prior experience designing standardized tests and did not list "psychometrician" 
among her prior occupations. Most of her claimed experience involved teaching English and 
interpreting for speakers of Mandarin Chinese. Similarly, the discussion of the petitioner's "research 
interests" included "General learning strategies," "Second language acquisition" and "Shyness," but no 
mention of psychometrics (although she did acknowledge having taken coursework in psychometrics). 
Considering that the use of psychometrics to design standardized tests is a centerpiece of counsel's 
Page 5 
initial arguments, this is a significant omission. 
 Counsel failed to explain how the petitioner's 
background distinguishes her from "minimally qualified" psychometricians, apart from appealing to the 
reputations of the universities where she studied. 
The petitioner submitted five witness letters. 
 Four of the five witnesses were involved in the 
petitioner's graduate studies at the University of Texas at Austin (UTA). None of these four witnesses 
discussed the petitioner's work in psychometrics in any detail; instead, they focused on other aspects of 
the petitioner's studies or praised her specific aptitudes. 
 stated: 
I have known [the petitioner] for three years as her instructor in several graduate classes 
and as a member of her dissertation committee at the University of Texas at Austin. We 
have also had a number of long discussions over the years about language learning and 
teaching. I believe that [the petitioner] is an "up and comer" in second language 
acquisition research. She brings a unique set of skills to our understanding of second 
language learning and teaching. Specifically, she combined a doctoral program in 
Educational Psychology with a concentration in teaching English as a Second Language. 
Accordingly, her competence in statistical approaches to second language acquisition 
research is considerably stronger than that of most scholars in the field. . . . 
In her dissertation, [the petitioner] studied the use of language learning strategies and 
personality type in successful language learning. To my knowledge, she is the first 
scholar to explore the role of shyness in language learning. I believe that her research 
offers important insights to help us understand why some immigrants spend many years 
studying English but are still unable to participate competently in conversations with 
other English-speakers. 
the demands of an intensive research experience" and her 
 articularly strong background in 
quantitative data analysis." Like - focused her comments on the 
petitioner's studies of how shyness affects second language acquisition. also stated that 
the petitioner "is a capable and experienced simultaneous interpreter." 
group, whose 
work is directed at the emotion of boredom and it's [sic] relation to motivation. 
Her ideas for her prospectus work were good ones, well worked out, and her prospectus 
process went well. Now she has also completed work on a really good dissertation 
project and defended that dissertation at her first oral. In both her prospectus and her 
dissertation she was concerned with integrating ideas from personality theory, on the 
one hand, with ideas from the mainstream learning and motivation literatures on the 
other hand. I believe that what she has done now provides a foundation for a program of 
research that, over many studies, could have interesting implications for how teachers 
might think about customizing instructional techniques to fit the personalitie [sic] of 
individual students. 
. . . I believe that her potential to contribute to the educational system in the United 
States compares favorably to anyone of any nation of origin. 
- a senior researcher with the Texas Higher Education 
on the UTA faculty, but served on the petitioner's doctoral dissertation committee. 
stated: 
[The petitioner] offers a unique blend of qualities: 
First, [the petitioner's] knowledge and application of the nature of her research is so 
important to helping the United States increase participation and success of students in 
Higher Education. The more understanding we have of how students learn or, more 
importantly, do not learn, in the college classroom, the better we can serve them. This 
includes shy students who may go unnoticed by their professors or peers. Her research 
can help us reach these students. . . . 
Second, [the petitioner's] content knowledge and command of research methods1 
statistics would be valuable in other sectors of the U.S. labor market. The transferability 
of her skills to other sectors would be a tremendous benefit to the U.S., especially the 
business sector. [The petitioner] has the extraordinary quality of being able to help 
companies navigate the cultural landscape of Asian cultures and to designlevaluate the 
effect of related training programs and interventions. Her deep knowledge of human 
learning and her research into shyness would be a boon for any company that hired her. 
The only witness not involved in the petitioner's graduate studies at UTA has older ties to the petitioner. 
- of Reading Test Development at Data Recognition Corporation, Maple Grove, 
Minnesota, stated: 
I met [the petitioner] as a graduate student at Harvard University in 1996. . . . 
Her Doctor of Philosophy degree allows [the petitioner] to pursue one of two paths - 
that of her current research or that of educational testing and psychometrics to which I 
can speak. 
The educational testing business is very specialized. . . . I can say there are not enough 
psychometricians in this line of work. . . . 
Psychometricians are needed in school districts to help run testing programs and monitor 
test scores for individual schools, at the state level in departments of education, in 
colleges and universities to carry out educationally related research in the testing arena, 
and in companies that provide testing services to state departments of education such as 
the company for which I work. . . . 
A major factor that distinguishes [the petitioner] from . . . other colleagues in various 
countries is her English language skills. 
A shortage of qualified workers is not a strong basis for the waiver, because the labor certification 
process already exists to address local worker shortages. See Matter of New York State Dept. of 
Transportation at 218. 
 does not claim that the petitioner's fluenc in the English language 
distinguishes her from United States workers in the same field. Instead, 
 artificially limits 
consideration to alien psychometricians from non-English speaking countries. 
None of the initial witnesses claimed that the petitioner's work had already had any significant impact 
on her field of endeavor. Rather, the witnesses stated that her student work showed great potential for 
future contributions. Furthermore, most witnesses discussed the petitioner's research on language 
acquisition; the only witness to even mention psychometrics acknowledged that the petitioner's "current 
research" lies elsewhere. Counsel, however, concentrated almost exclusively on psychometrics 
combined with general assertions about education policy. Counsel, therefore, ignored the bulk of the 
petitioner's work and staked the waiver application on a career path that the petitioner has, thus far, not 
followed. In essence, counsel asserted that the petitioner should receive the waiver because the option 
of pursuing employment in educational testing and psychometrics is open to her. 
The remainder of the petitioner's initial submission consists of general background information about 
education and psychometrics rather than evidence relating specifically to the petitioner. Neither counsel 
nor any witness discussed how the petitioner's employment as a market research analyst served the 
national interest, or related to educational psychology in general or psychometrics in particular. 
On April 20, 2009, the director instructed the petitioner to submit evidence to show "the full extent to 
which the beneficiary's research findings have been implemented by others throughout this research 
field." The ~etitioner's resnonse. which contains no evident mention of ~svchometrics at all. consisted 
I do not know [the petitioner] personally. However, I have met her at conferences that 
we were both attending and on a recent visit to the University of Texas where I was 
giving an invited address. . . . 
What I see in her research is a serious attempt at understanding how learners are affected 
by their motivational approaches, their emotions, and the strategies they use in learning a 
foreign language. Her focus on the construct of shyness shows an insight into how 
students of different temperaments may respond to a classroom situation that requires 
verbal interaction. I believe the study represented by her dissertation research is 
publishable. . . . 
Page 8 
In my estimation, there are several qualities that [the petitioner] would bring to the 
discipline that are not easily replicated by her peers in the field. Not only is she trained 
as an educational psychologist but she also has cultural and language knowledge that 
allow her an unusually broad level of empathy and skill in interacting with students and 
scholars from an increasingly diverse population in our American universities. I can see 
her future presence at international meetings and in research groups as an asset to the 
discipline. 
My research projects have included topics related to students' emotion regulation in 
academic settings, teachers and their understanding of emotional transactions in the 
classroom, and a variety of research methods used to study emotions. I have met [the 
petitioner] when I traveled to the University of Texas at Austin for an invited talk a few 
years ago when she was still a doctoral student and have been acquainted with her fiom 
meetings at conferences. Her lines of research on academic boredom and shyness 
among Taiwanese college students learning English as a foreign language drew my 
attention. Both topics can help teachers demystify the emotions their students are 
experiencing while learning and further modify their delivery of course materials and 
activities they utilize. Specifically, [the petitioner's] personal experience and 
understanding of how shyness is perceived in the Chinese culture should prove valuable, 
especially in enriching the understanding of American teachers who may misinterpret 
the quiet nature of these seemingly shy students. . . . 
In addition to [the petitioner's] research endeavors, her past college teaching experience 
both in Taiwan and at the University of Texas at Austin has prepared her to be a well- 
rounded scholar who has the capacity of interacting productively and effectively with 
ethnically diverse colleagues and students. 
Like the initial witnesses, the witnesses quoted above attested not to the petitioner's impact on her field, 
but rather to her potential for eventually having such an impact. 
The director denied the petition on August 18, 2009. In the decision, the director found that the 
petitioner had not shown the impact, influence or significance of her work, compared with that of 
other qualified workers in her field. On appeal, counsel states that the petitioner "is a professional 
educational psychologist whose work, education, and experience are primarily focused in the areas 
of education, psychology, with a prospective future in the area of psychometrics." The record 
contains no evidence that the petitioner "is a professional educational psychologist." The record 
shows that she has training in that specialty, but it also indicates that she was employed as a market 
research analyst when she filed the petition. There is no evidence that the petitioner has ever been a 
practicing educational psychologist. Speculation about the petitioner's "prospective future in the 
area of psychometrics" has no weight as evidence. The unsupported assertions of counsel do not 
constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). The one witness who actually mentioned psychometrics acknowledged that the petitioner was 
not yet engaged in psychometrics, and would have to abandon "her current research" in order to 
move into that field. 
Counsel contends that the director "created a new standard in which the person recommending the 
applicant must be a third party who is unfamiliar with the Applicant's work but be able to write a 
detailed recommendation. NYSDOT makes no mention of such." The director did not request letters 
fiom witnesses "unfamiliar with [the petitioner's] work." Quite the contrary; the point of the request 
was to establish the impact of the petitioner's work outside of her circle of mentors and collaborators. 
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. Matter of New 
York State Dept. of Transportation at 2 19. 
The petitioner need not be among the most prominent individuals in her chosen specialty, but if her 
work is virtually unknown except to her professors, then it is difficult to infer that she has built up a 
significant record of achievement. The witnesses of record discussed previously have not claimed that 
the petitioner has influenced her field (whether that field is educational psychology or psychometrics). 
Rather, they have referred to her "potential," or to her "promising" career. 
The petitioner submits two neiv witness letters on appeal. Like a number of other witnesses, -1 
assistant professor at Oklahoma state university, met the petitioner at a professional 
conference. 
 states that the petitioner's "project about graduate students' use of politeness 
strategies in online discussion . . . has attracted much attention from scholars in the fields of technology, 
education and literacy, and their findings have been published in several reputable journals." The 
record contains no objective evidence of this "attention," or even that the petitioner's "findings have 
been published in several reputable journals." 
The appeal includes uncorrected proof copies of two articles identified as "in press." These articles did 
not exist when the petitioner filed the petition, and they remained unpublished when the petitioner filed 
the appeal nearly a year later. An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time of filing the application or petition. 8 C.F.R. 5 103.2(b)(l). Therefore, 
subsequent events cannot cause a previously ineligible alien to become eligible after the filing date. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Comrnr. 1971). The title of one article refers to "Being 
polite," but a proof copy of one unpublished article does not establish that the petitioner's work in this 
area had previously already "been published in several reputable journals." 
- principal research scientist at the Educational Testing Service, Princeton, New 
Jersey, is the first independent witness to be directly involved in standardized testing of students. 
(who, like other witnesses, met the petitioner at a conference) states that the petitioner's 
"program of research on academic boredom and shyness among Taiwanese college students . . . has 
garnished [sic] my interest. . . . [The petitioner's] research provides some stimulating ideas that may be 
followed up in subsequent studies; the hallmark of a successful scholar." To qualify for the special 
benefit of a national-interest waiver, one must be more than "a successful scholar." 
 One must 
empirically distinguish oneself fiom one's eers a process that involves more than locating witnesses 
willing to provide favorable letters. dh states that the petitioner's work is "gaining wider 
significance," but he does not show that the petitioner was already an influential researcher when she 
filed the petition in 2008. 
The petitioner has clearly obtained high-quality education in educational psychology, and her efforts 
have begun to bear hit in the form of published articles and conference presentations. It may well be 
that, at some future time, her work mill show demonstrable influence in the field of educational 
psychology in general or even psychometrics in particular. We cannot, however, find that the petitioner 
had such an impact as of the petition's filing date. Her claimed employment as a market research 
analyst at , in 2008-2009 does not readily demonstrate demand for the 
petitioner's services in the field of educational psychology, nor does it readily demonstrate any intention 
by the petitioner to work in that field. 
As is clear fiom 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 fiom 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.