dismissed EB-2 NIW Case: Esl Education

(b)(6)
DATE: 
JUL 0 8 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admini strative Appeal s Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin gton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion , with a fee of $630. The 
specific requirement s for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~onRos enbe 
/ Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 under 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 teaches English as a second language (ESL), also called English for speakers of other 
languages (ESOL), for . On the F01m I-140 petition, 
the petitioner descrihed herself as an elementary teacher, but at the time she filed the petition, the 
petitioner taught at Maryland, and 
Maryland. The petitioner had previously taught at 
Maryland. 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 and copies of standardized test scores. 
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 
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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). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (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] 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. 
In reNew York State Dept. of Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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. 
The USCIS regulation at 8 C.P.R. § 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 offer/labor 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 Form I-140 petition on April12, 2012. In an introductory statement, counsel 
stated that the petitioner's "petition for the waiver of the labor certification is premised on her 
Master's Degree in Education and more than ten (10) years of dedicated and progressive teaching 
experience." Under the regulations at 8 C.P.R. §§ 204.5(k)(3)(ii)(A) and (B), a degree plus ten years 
of experience could partially support a claim of exceptional ability in the sciences, the arts, or 
business, but additional evidence would still be necessary. As stated above, exceptional ability is not 
grounds for the waiver; aliens of exceptional ability are, by law, subject to the job offer requirement. 
(b)(6)
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Therefore, the petitioner's degree and experience cannot provide prima facie support for the national 
interest waiver application. 
Counsel discussed the overall importance of ESL education and asserted that the petitioner's 
"consistent high performance, dedication to her students, and leadership among her colleagues 
exemplifies the very qualities of an educator that the United States educational system strives to 
provide for America's future generations." 
In an accompanying personal statement, the petitioner described her past experience and her current 
work. Neither the petitioner nor counsel addressed the guidelines set forth in NYSDOT for the 
national interest waiver. The petitioner, in her statement , did not mention the waiver at all. 
The petitioner submitted letters from several administrators and teachers who have worked with her, 
as well as from former students and their parents. The witnesses praised the petitioner's abilities and 
dedication, but did not indicate that the petitioner has or will benefit the United States to a greater 
extent than other qualified ESL teachers. 
A section of the record labeled "Awards and Certificates" includes numerous exhibits, most of 
which document the petitioner's fulfillment of continuing education requirements or show her 
completion of specialty courses. The certificates do not show recognition outside of 
The director issued a request for evidence on July 13, 2012, stating: "The petitioner must establish 
that the beneficiary has a past record of specific prior achievement with some degree of influence on 
the field as a whole. The beneficiary's previous influence on the field as a whole must justify 
projections of future benefit to the national interest." 
In response, counsel stated: 
Since a 'National ESOL Teacher' is not even a real concept but more of metaphysical 
cognition [sic], undersigned wishes to once again posit a realistic proposition upon 
which to establish that the self-petitioner's contributions will impart national-level 
benefits. 
Even the curricula used by each state education department in the United States vary 
from each other. 
In other words, since not all NIW cases are based on prevailing Acts of United States 
Congress made with premise on some prevailing Acts of United States Congress, it is 
but harmless to assert that if an NIW Petition is made with premise on some 
prevailing Acts of United States Congress, that by itself renders the proposed 
employment national in scope. But in those cases that are not premised on any 
prevailing Act of United States Congress, NIW self-petitioners must meet the issue 
on other bases. 
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Page 5 
All employment-based immigrant classifications are based on "prevailing Acts of United States 
Congress," and so is the statutory job offer requirement. There is no basis to conclude that 
Congress, by mentioning a given occupation in a particular piece of legislation, exempted aliens in 
that occupation from the job offer requirement. 
Following the issuance of NYSDOT in 1998, Congress has enacted only one statutory change in 
direct response to that precedent decision. Specifically , Congress added section 203(b)(2)(B)(ii) to 
the Act, creating special waiver provisions for certain physicians. Those provisions do not apply in 
this proceeding. Therefore, NYSDOT controls in this case. Counsel did not show that other statutory 
provisions indirectly imply the petitioner's eligibility for the waiver, even though those provisions 
never mention the waiver directly. 
Counsel cited various statutes and policy initiatives regarding the value of education in general and 
ESL education in particular. These provisions do not create a blanket waiver for ESL teachers. 
Counsel asserted: "The best way to make today's students is to be educated by 'Highly Qualified 
Teachers' like [the petitioner]." The phrase "Highly Qualified Teacher" appears capitalized and in 
quotation marks because that phrase appears repeatedly in the No Child Left Behind Act (NCLBA). 
Counsel states that the labor certification process could not take the petitioner's master's degree into 
account, because the minimum academic qualification for a school teacher is a bachelor's degree. 
Therefore , counsel claimed, the labor ce1tification process "would not meet the objective of the 
employer to hire highly qualified teachers pursuant to No Child Left Behind (NCLB) Law." 
Section 9101(23) of the NCLBA, 20 U.S.C. § 7801(23), defines the term "highly qualified" in 
reference to teachers . Sections 9101(23)(B) and (C) of the NCLBA require that a "highly qualified" 
teacher "holds at least a bachelor's degree." Section 9101(23)(B) of the NCLBA also refers to 
"highly qualified" teachers who are "new to the profession." Thus, neither the petitioner's master's 
degree nor her years of experience- the two factors that counsel had originally cited in support of 
the petition - are required for "highly qualified" status under the NCLBA. Because the NCLBA 
defines 
a teacher with a bachelor' s degree as "highly qualified" (provided the teacher meets other 
specified requirements), the labor certification process does not thwart the NCLBA by setting the 
minimum degree requirement at a 
bachelor's degree rather than a master' s degree. 
Counsel contended that the petitioner has unique or special traits that labor certification cannot take 
into account, but the petitioner failed to submit evidence to support this claim. 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). 
In her second personal statement, the petitioner discussed the state of ESOL education in the United 
States, and its importance within the overall educational infrastructure. These assertions address the 
intrinsic merit of ESL education, which is only one prong of the three-pronged NYSDOT national 
interest test. The petitioner also asserted: "ESL positions in U.S. schools are considered hard-to­
staff positions . .. . Few U.S. teachers are highly qualified and fully certified to teach the ESL 
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students .... [T]he U.S. schools throughout the country are in need of many more certified and 
qualified ESL teachers." With regard to the unavailability of qualified U.S. workers, the job offer 
waiver based on national interest is not warranted solely for the purpose of ameliorating a local labor 
sho1tage, because the labor certification process is already in place to address such shortages. 
NYSDOT, 22 I&N Dec. 218. The assertion of a labor shortage, therefore, should be tested through 
the labor certification process. !d. at 220. 
The director denied the petition on November 7, 2012, stating that, whatever the overall merit of 
ESL education at a national level, "the impact of a single Elementary School teacher in Maryland is 
not in the national interest for purposes of waiving the job offer requirement of section 203(b)(2)(B) 
of the Act. The petitioner has not established that the impact of her activities will be national in 
scope." 
On appeal, counsel notes that Congress passed the NCLBA three years after the issuance of 
NYSDOT as a precedent decision, and claims that "the NCLB Act 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 middle school education sector." Counsel, however, 
identifies no special legislative or regulatory provisions that exempt school teachers from NYSDOT 
or reduce its impact on them. 
Counsel's assertion that the NCLBA modified or superseded NYSDOT is not persuasive; that 
legislation did not amend section 203(b )(2) of the Act. In contrast, section 5 of the Nursing Relief 
for Disadvantaged Areas Act of 1999, Pub.L. 106-95 (November 12, 1999), specifically amended 
the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to that Act, to create special 
waiver provisions for certain physicians. Because Congress not only can amend the Act to clarify 
the waiver provisions, but has in fact done so in direct response to NYSDOT, counsel has not 
established that the NCLBA indirectly implies a similar legislative change. 
Counsel states: 
With respect to the E21 visa classification, INA § 203(b)(2)(A) provides in relevant 
part that: "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 ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States." 
Counsel, above, highlighted the phrase "national educational interests," but the very same quoted 
passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are 
sought by an employer in the United States." Counsel has, thus, directly quoted the section of 
relevant law that supports the director's conclusion. By the plain wording of the statute that counsel 
quotes on appeal, an alien professional holding an advanced degree is presumptively subject to the 
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job offer requirement, even if that individual "will substantially benefit prospectively the national 
... educational interests ... of the United States." Neither the Immigration and Nationality Act nor 
the No Child Left Behind Act, separately or in combination, create or imply any blanket waiver for 
teachers. On appeal, counsel maintains "it has been demonstrated that ... the bench mark of [the 
petitioner's] request for waiver [is] compliance with the No Child Left Behind Act of 2001." The 
petitioner has failed to establish this claim. 
Counsel contends that the "USCIS erred in disregarding evidence demonstrating the national scope 
of petitioner's proposed benefit through her effective role in serving the national educational interest 
of closing the achievement gap." The record, however, contains no evidence that the petitioner's 
efforts have significantly closed that gap. Citing printouts submitted on appeal, counsel states: "The 
2012 MSA [Maryland State Assessment] Reading results show that out of the 24 Maryland school 
districts ranked near the bottom at the 'All Student' level for each MSA-covered grade 
level." Counsel adds: "it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO targets." The petitioner had worked fo 
since 2008, and thus had been there for a number of years before the administration of the 2012 
MSA tests. Counsel does not explain how the documented 2012 results (which show particularly 
low numbers for non-English proficient students) establish that the petitioner has played an 
"effective role ... closing the achievement gap." 
Counsel refers to the petitioner as "a teacher of Special Education," and as "an effective teacher in 
raising student achievement in STEM" (science, technology, engineering and mathematics), but the 
petitioner has not submitted evidence to establish that she teaches in those specialties. 
Counsel states that a waiver would ultimately serve the interests of United States teachers, because if 
schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Law," the 
result would be "not only ... closure of these schools but [also] loss of work for those working in 
those schools." Counsel does not document "closure of ... schools" for failing to meet NCLBA 
requirements, and the record does not show that the petitioner's work has brought schools 
closer to meeting the NCLBA requirements. 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
Congress has not established any blanket waiver for teachers. Eligibility for the waiver rests not on the 
basis of the overall importance of a given profession, but rather 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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.