dismissed EB-2 NIW Case: Instructional Technology

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLIC copy 
DATE: fEB 2 4 2012 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision. or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or rcopen. 
Thank you, 
~\ 1'~ ~~~~ ts'~ 
7 p~rry::'-(J 
Chief, Administrative Appeals Office 
www.llscis.gov 
Page 2 
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 seeks employment as an academic professional at the Georgia Institute of Technology 
(Georgia Tech), Atlanta. 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 statement and supporting exhibits. 
The AAO notes that, in prior was the petitioner's 
attorney of record. The record, however, no mvolvement with the 
preparation or filing of the appeal. The appeal does not include a newly Form G-28, Notice of 
Entry of Appearance as Attorney or Representative, as required by the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. § 292.4(a). Given the absence of this required 
form, and the complete absence of any indication that is still the petitioner's attorney of record, 
the AAO considers the petitioner to he self-represented at this time. In this decision, the term "prior 
counsel" shall refer to _. 
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. 
Page 3 
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, WIst Cong., 1st Sess., 11 (1989). 
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] 
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 o/New York State Dept. o/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 seeking the waiver 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 AAO also notes 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. 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 ofthe 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. 
Page 4 
The petitioner filed the Form 1-140 petition on September 13, 2010. In an accompanying statement, 
prior counsel stated that the petitioner "has demonstrated outstanding expertise in instructional 
technology, particularly as it relates to the foundational research and development of distance and 
online education." Prior counsel contended that the petitioner's "innovative and novel contributions ... 
prove her ability to provide significant, essential, and vital benefits to critical national interests. She has 
a truly impressive record of success that has had a considerable impact on her field." 
Prior counsel asserted that the labor certification process cannot take the petitioner's special expertise 
and contributions into account, and "failure to consider these factors could result in a denial of a labor 
certification." Prior counsel therefore concluded that "requiring a labor certification would adversely 
affect the national interest." 
Prior counsel's hypothetical conjecture about labor certification is now moot. There is no longer any 
question of whether or not an employer could obtain a labor certification on the petitioner's behalf. 
USC1S records show that, on May 6, 2011, Georgia Tech applied for such a labor certification. The 
Department of Labor approved the labor certification on July 7, 2011, and Georgia Tech used it to file a 
new Form 1-140 petition on August 1,2011. The director approved that petition four days later, on 
August 5, 2011 ~ 
- •• - -1- • 1 .. 1 anied the initial filing. 
chaired the petitioner' s rI""~1-",,r<> 
[The petitioner] worked witi. ;TIe to design, develop, and implement distance classes and 
we looked into how various technologies could be creatively and effectively used for 
distance education. These courses have been successfully implemented and become the 
core curriculum of the online master program in Educational Technology at Texas Tech . 
. . . Her dissertation investigated the use of animation and simulation for online training . 
. . . [S]he innovatively integrated different types of simulations into the software 
training, which enabled learners to interact with the multimedia training program she 
designed and developed. She found that simulations benefit software application 
learning and simulation with learner control is the most effective learning practice. This 
finding is very significant. ... Through the dissemination of her work, [the petitioner] 
has not only made great contributions to the critical area of information technology, but 
also made herself well known as an outstanding researcher among the international 
research community. 
During the past five years, [the petitioner] has provided critical and timely support to the 
campus by consulting with faculty individually and in training workshops about using 
technology in on-line (and hybrid) course design and delivery .... She has helped 
Page 5 
faculty members develop on-line curricula, instructional materials, multimedia 
components, learning objects, and overall course design, all of which have served to 
greatly improve the quality of both on-line and face-to-face courses. 
In 2006, an open-source software, to be its learning 
management system. To help faculty with the transition to the new system, [the 
petitioner] designed and developed printed and digital training manuals, 
documentations, and tutorials on how to use the system. _ has been adopted by 
more than 200 well-known institutions in the US and abroad. It is impressive that these 
resources created ~e petitioner] have become important tools used by many other 
institutions in the_ community. [The petitioner] has also served as an important 
liaison between faculty and the development team of T -Square, the ~ installation at 
Georgia Tech ..... [The petitioner's] efforts and her instructional technology expertise 
have significantly contributed to the success of the T-Square team. Georgia Tech has 
become a leading member in the Sakai community with its continuous contributions to 
the development of the system, which in turn is attracting more and more institutions 
around the world to adopt it for teaching, learning, and collaborative research. 
The petitioner submitted no documentary evidence to show how many institutions use the _ 
training materials that the petitioner developed, and did not ,explain how she knew that 
"many other institutions" use those materials. Because did, not identify the "many other 
institutions," this unsupported claim is impossible to verify. Going' on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Malter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
stated: "It is extremely hard to find a Chinese language teacher who is also skillful in online teaching. 
[The petitioner] is no doubt a perfect candidate for this challenging task. . . . [The petitioner] teaches 
both elementary and intennediate online Chinese classes." _ credited the petitioner with 
"significant contributions to the design and development of tliese courses," as well as providing 
"support, training, and consultations to all instructors who teach online foreign languages on the 
effective use of instructional technology." 
is the 
editor of the journals Quarterly Review of Distance Education and Distance Learning. iiiiiiill •• 
discussed articles that the petitioner submitted to those journals: 
[The petitioner's] article, 
in Distance Learning in 
effectively use alternatives for both course development and interaction in distance 
learning when course management systems (CMS) are not available or affordable .... 
Page 6 
stated: 
[I]t was very significant that [the petitioner] and her colleagues explored the potential for 
developing online courses using alternatives to a eMS .... 
was published in Quarterly Review of 
Distance Education in 2007. . . . [V]ery few articles look into synchronous 
communication in distance learning. The research study done by [the petitioner] and her 
colleagues was thus innovative and significant. They have proven that synchronous 
communication could facilitate students' collaboration in online classes .... 
It is my professional judgment that [the petitioner] stands out as an exceptionally 
talented researcher who possesses a unique set of skills and profound understanding in 
learning technologies, learning theories, and research methodology in distance 
education. What is more valuable is that [the petitioner's] involvement with the field 
has enabled her to have a deeper understanding of pedagogical application and practices 
that are not commonly seen in many researchers .... 
[The petitioner's] exemplary work has made her one of the most outstanding 
professionals in instructional technology and distance education. 
In 2008 I selected [the petitioner] as a member of the review board because of her 
outstanding research on multimedia learning. Since then, [the petitioner] has provided 
excellent services that help ensure high quality of the manuscripts p~blished in EM!. 
... The results of her research studies, particularly those on the' use of animation and 
simulation for online training, have become the practical guidance for the design and 
development of online training. Without question [the petitioner] has established herself 
as an outstanding researcher with international recognition in the field of educational 
media. 
The process described in the first paragraph above appears to be peer review, the routine vetting of 
manuscripts submitted for publication in scholarly journals. Supporting this conclusion are copies of 
electronic mail messages from asking the petitioner to review manuscripts. 
The petitioner submitted copies of four articles that she co-authored between 2004 and 2007. Three of 
these articles reported original research. The fourth, published in Educational Technology in 2004, is 
essentially a reference guide, listing and describing journals and other resources available to distance 
learning professionals. The petitioner was a doctoral student throughout that entire period. Doctoral 
studies entail original research as a matter of course. The record contains no evidence that the petitioner 
Page 7 
has produced any published work, or conducted research for publication, since she completed her 
doctoral studies in 2008. 
The petitioner's conference presentations fell within the same period, coinciding with her doctoral 
studies. Two presentations took place after the petitioner graduated from Texas Tech, but the 
petitioner's co-authors were both on the Texas Tech faculty, indicating that the research took place at 
Texas Tech but was not ready for presentation until after the petitioner had moved to Georgia Tech. 
The petitioner documented twelve citations of her work: two of a 2004 presentation in •••••• 
The initially submitted materials show that the petitioner produced published research during her 
doctoral studies at Texas Tech, and that she has helped Georgia Tech in its transition to the _ 
system, but fell short of supporting some witnesses' claims that the petitioner had earned a significant 
international reputation in her field. 
On December 17, 2010, the director issued a request for evidence, stating that the petitioner's initial 
submission did not establish the level of impact and influence necessary to qualify for the waiver. In 
response, the petitioner submitted three further letters, all from witnesses who stated that they are not 
personally acquainted with the petitioner of the University of Sydney, 
Australia, stated that he became familiar with the petitioner's work through her presentations at annual 
meetings of the American Educational Research Association. description of the 
significance of the petitioner's work is similar to passages from the earlier letter For 
instance, stated: that the petitioner "innovatively integrated different types of simulations 
into the software training, which enabled learners to interact with the multimedia training program she 
designed and developed. She found that simulations benefit software application learning and 
simulation with learner control is the most effective learning practice. This fmding is very significant." 
in comparison, stated that the petitioner "further explored the effectiveness of different 
types of simulations she designed and developed. She found that simulation with learner control is the 
most effective learning practice. This finding is of great significance." 
As another example, • stated that the petitioner's "great coptributions" made her "well 
known as an outstanding researcher among the international research community." 
stated: "Her great contributions to this field have gained her an international reputation as an 
outstanding researcher and practitioner." 
stated: 
I am internationally recognized for my expertise in the Sakai open source collaborative 
learning environment. ... 
Page 8 
[T]he development of _ is deeply collaborative and its success depends on the 
contributions of community members. [The petitioner] is one of the members who have 
made significant contributions to the Sakai community .... [The petitioner] designed 
and developed both printed and digital documentations and tutorials on how to use the 
system. Her pioneering work has been published online and is being used not only by 
Georgia Tech but also other institutions as well. 
Like prior witnesses. offered only the general assertion that "other institutions" use the 
petitioner's Sakai training materials. Without corroborating evidence or even identifying information, 
this claim is too vague to carry significant weight. 
praised the 
" .... ,'"''"',''" .. ' .... ~~plon:mon of alternatives to course management systems (CMS) for online 
an alumnus of Texas Tech, stated: 
[The petitioner] has designed, developed and implemented online courses by creatively 
combining different technologies that are free to educators. Her innovative and 
successful experience has no doubt provided an excellent model for offering cost­
effective online education .... There is no doubt that this model of instructional design 
has greatly influenced educators and educational technology practitioners in applying 
technologies in their classrooms. 
Stating "[t]here is no doubt" that the petitioner's model is in widesprea.<.f ~se is not the same thing as 
showing it to be the ca<;e. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as 
to whether they support the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of SojJici, 22 I&N Dec. 
Page 9 
158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of the petitioner's influence without 
corroboration or details. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
The director denied the petition on February 8, 2011. The director quoted several of the witness 
letters and acknowledged some of the petitioner's evidentiary submissions, but found that the 
petitioner had not shown that her contributions to her field stand out to such an extent that they 
warrant the special benefit of a national interest waiver. 
On appeal, the petitioner asserts that the director "did not take into consideration [her] contributions 
to the field of foreign language education." The petitioner does not specify what those contributions 
were, or why they should qualify her for the waiver. The petitioner's previous submissions put little 
emphasis on her work in "foreign language education." Only one of the witnesses _ even 
mentioned that the petitioner taught Chinese language classes. Teaching a Chinese language class is 
not inherently a "contribution[] to the field of foreign language education," whether the course is 
online or in a traditional classroom setting. There is no blanket waiver for language teachers, and 
the petitioner has done little more than show that she teaches language classes. 
the petitioner's proposal for a project called 
The proposal documents are dated February 24,2011, 
more two the petition. These materials did not exist at the time 
of the director's decision, and therefore the director clearly could not have taken them into account. 
Even if the petitioner had shown that this new project is now an influential contribution to language 
education rather than an embryonic proposal, 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. 
§ 103.2(b)(1). USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
The petitioner asserts that the director "did not make an accurate appraisal [ of her] contributions to 
the Sakai project." The record, however, lacks objective measures of the significance of those 
contributions. The petitioner simply declares her work to be significant. The petitioner states, for 
example, that "having fifteen papers accepted by ... prestigious peer-reviewed conferences is by no 
means common," but she cites no independent, verifiable evidence to support this claim. Similarly, 
the petitioner asserts that she "had been invited to review other researchers' work by an international 
journal," but she submits nothing to show that participation in peer review is a rare privilege rather 
than a duty expected of researchers who, themselves, produce work that requires peer review. 
Page 10 
The petitioner correctly asserts that citations are not the only means by which to gauge a researcher's 
impact, but in this instance the petitioner provided little else. The petitioner asserts that she provided 
"five reference letters from independent experts in the United States and abroad." The AAO has 
considered these letters, as discussed above. Such letters are not without weight, but they cannot 
fully replace objective documentary evidence, particularly with regard to claims of fact rather than 
matters of expert opinion. 
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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.