dismissed EB-2 NIW Case: Language Instruction

idi.ii(iiyicg 1-1; Jciz~rd LO 
prevent clear arly unwarranted 
invasion of persona\ privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: FEB 2 5 2009 
SRC 07 800 14795 
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. § 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. $ 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. 103.5(a)(l)(i). 
F. Grissom, Acting Chief 
rninistrative 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 appeal 
will be dismissed. 
The petitioner seeks to classifjr the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153@)(2), as a member of the professions holding an advanced 
degree. The petitioner, a foreign language school operated by the United States Department of Defense 
(DOD), seeks to employ the beneficiary as an assistant professor. The petitioner asserts that an 
exemption fiom 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 beneficiary qualifies for classification as a member of 
the professions holding an advanced degree, but that the petitioner has not established that an exemption 
fiom the requirement of a job offer would be in the national interest of the United States. 
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, 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 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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 seelung 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. § 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. 
Counsel stated that the beneficiary has "already made a significant contribution to the U.S. national 
interest, distinguished from a standard college language teacher, in that [the beneficiary] has already 
trained dozens of members of the military to be accomplished linguists in the Chinese language." 
This may distinguish the beneficiary from "[a] normal language instructor in a college or 
university," but as counsel acknowledged, the petitioner is not a standard college or university; it is a 
dedicated military training facility. General statements about how members of the petitioner's 
faculty are different from typical college professors apply not only to the beneficiary, but to every 
member of the petitioner's faculty. The statute and regulations establish no blanket waiver for 
simply serving on the petitioner's faculty. We note that section 203(b)(2)(B)(ii) of the Act provides 
Page 4 
for a blanket waiver for certain physicians. The AAO cannot create, or presume to exist, other 
blanket waivers for which Congress made no comparable provision. 
Arguments relating to the overall importance of the type of work an alien performs are germane to 
the intrinsic merit and national scope of the alien's occupation, but they cannot establish a given 
alien merits a waiver simply by virtue of working in that occupation. Therefore, it cannot suffice for 
the petitioner to establish that it is in the national interest for the petitioner to employ instructors. 
The petitioner must establish specifically that the beneficiary will benefit the United States more 
than would a qualified United States worker in that same occupation. 
The record shows that the petitioner filed a previous petition on the beneficiary's behalf, with receipt 
number SRC 07 125 53532, on March 15, 2007, seeking to classify the beneficiary as a member of 
the professions under section 203(b)(3)(A)(ii) of the Act. While that petition was still pending on 
May 2 1, 2007, when the petitioner filed the petition now on appeal, the director approved the earlier 
petition on September 1 1, 2007. Significantly, the approved petition includes a labor certification 
which the Department of Labor (DOL) approved within weeks of its February 5, 2007 filing date. 
The petitioner therefore seeks to waive a requirement that has already been met. 
Counsel makes various claims as to how the labor certification process is incompatible with the 
petitioner's teacher retention policy. Because the petitioner obtained an approved labor certification 
for the beneficiary, well before counsel made these arguments, it would serve no usehl purpose to 
entertain those arguments here. More generally, we hold that no employer, whether private or 
governmental, can unilaterally exempt itself from the labor certification process by setting personnel 
policies at odds with that process. Congress, which created the labor certification requirement, is 
capable of exempting employers such as the petitioner from that requirement, but to date Congress 
has not yet done so, and the AAO lacks jurisdiction to declare the petitioner (or any other employer) 
to be exempt from labor certification for this classification. 
In a letter dated both May 15 and May 18, 2007, , the petitioner's deputy chief of 
staff for personnel and logistics, stated: 
Our school is a part of the United States Army. Our 3500 students are men and 
women who are members of all branches of the military. We train members of the 
military in an intensive year plus long, full time, irnmersive foreign language 
curriculum. . . . 
Our military and intelligence personnel cannot protect our nation from foreign threats 
without acquiring the highest level of language ability needed to perceive such threats 
from among available data, or to communicate with persons who they may need to 
help with their duties. . . . We therefore provide the highest possible level of language 
instruction, and require not just average teachers, but the best we can get. . . . Our 
mission requires that our teachers must focus nearly all of their energy on instruction, 
unlike typical college professors who can engage in extensive academic writing and 
publication. . . . 
[The beneficiary] brings a high level of expertise in language teaching and technology 
to her work. . . . Her academic degrees and research have focused on language 
teaching, and she has focused on integrating technology into language teaching. She 
has excelled in all areas of teaching at our institution. . . . 
Our official school catalogue notes the great importance to our program that we 
retain the skilled teachers that have experience and success in our school. [The 
beneficiary] has already received hundreds of hours of special training in [the 
petitioner's] language teaching techniques. 
(Emphasis in original.) The AAO acknowledges that the beneficiary's occupation is not necessarily 
conducive to producing large quantities of published research. Published research is certainly not 
the only means by which an alien can establish eligibility for the national interest waiver. 
Nevertheless, the petitioner must establish that the beneficiary has had a comparable impact by some 
other means. 
noted that the beneficiary "was rated at the highest level of excellence" on her Civilian 
Evaluation Report for the period from April 17 to September 30, 2006. This report calls the 
beneficiary "a relatively new teacher." Indeed, the report is supposed to be an annual rating, but it 
covers only six months because the petitioner did not hire the beneficiary until April 2006. The 
record does not reveal the distribution of ratings or show how many of the petitioner's instructors 
achieved the top rating during their first half-year of teaching. The beneficiary's rating demonstrates 
that lengthy experience at the petitioning institution is not necessary to achieve a high level of 
performance. When we consider arguments concerning the importance of retaining experienced 
instructors, we cannot ignore that the petitioner filed this petition only thirteen months after hiring 
the beneficiary. 
The beneficiar 's rating was signed by , who provided a letter of support dated April 
28, 2007. stated that the beneficiary "is one of the finest instructors that we have here," 
and her students assigned her a Teacher Effectiveness Anal sis Rating of "3.85, which was the 
highest one in our department and a very superior score." added that the beneficiary "is 
also the Language Technology Specialist of our department. She was assigned to this new position 
after she worked at [the petitioning institute] for only a few months, thanks to her exceptional job 
performance." 
, president of the Chinese Teachers' Association of California and a department chair at 
the petitioning institute, asserted that the beneficiary "is regarded as one of the most qualified 
language instructors in the school. . . . Her work at [the petitioning institute] has been consistently 
impressive." Letters from other instructors and students echo the above assertions regarding the 
petitioner's competence and effectiveness as a teacher. 
On October 30, 2007, the director issued a request for evidence, instructing the petitioner to explain 
how the beneficiary serves the national interest to a substantially greater extent than would a 
minimally qualified United States worker in the same capacity. In response, counsel offered a 
hypothetical example: 
To illustrate, during the Korean War, the U.S. was fighting against soldiers fiom 
China, and, if an enemy soldier were captured, it would have a national security need 
to interrogate that prisoner. If the Dept. of Labor rules were used, a minimally 
qualified instructor would have to be used, so that the prisoner might be interrogated 
by a soldier with minimal language skills. However, use of a soldier trained by the 
best possible language instructor would enhance the possibility of gathering the most 
accurate information. 
Counsel's highly speculative example assumes a direct correlation between the teacher's 
qualifications and the soldier's subsequent language skills. A student may be more likely to excel 
under the tutelage of a better teacher, but the record does not establish the extent of this effect. 
(Anecdotal self-reporting by a handful of students cannot suffice in this regard.) On a related note, 
the record contains no objective evidence that the petitioner's former students are, in fact, more 
fluent in Chinese than students who studied under other instructors at the institute. 
Counsel stated: "The national security mission of the employer would be compromised . . . in that it 
would provide lesser training to military and intelligence officers - if it were forced to use minimally 
qualified instructors without experience in its instruction system." Counsel, here, appears to treat the 
term "minimally qualified" as though it were a synonym for "barely competent." The petitioner and 
counsel have repeatedly argued that the petitioning institute is not like a civilian college and should 
not be regarded as such. If the petitioner is, indeed, an institution like no other, then it would seem 
that the petitioner is able to determine for itself what constitute the minimum qualifications for 
teaching there. An instructor who is unable to teach sufficient language skills to his or her students 
is unqualified, not "minimally qualified." The AAO sees no reason to assume that the petitioner has 
set its own hiring standards so low that to hire such workers would compromise national security, 
and that the national interest waiver is necessary to prevent the petitioner fiom hiring such workers. 
It is not clear what those minimum qualifications are (a brochure in the record indicates that dozens 
of faculty members do not hold bachelor's degrees), but the petitioner has not shown that the labor 
certification process would require it to hire teachers who are barely able to impart sufficient 
language skills to their students. There is no evidence that DOL establishes the minimum 
qualifications for a given position, and then imposes those requirements on employers. Instead, 
DOL ascertains the minimum requirements as established by the employers, and ensures that U.S. 
workers willing, able, and available to meet those requirements have meaningful access to job 
opportunities. The DOL also ensures that the employment of alien labor will not adversely affect 
similarly employed U.S. workers. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 8 1182(a)(5)(A)(i). 
In this particular instance, the petitioner's efforts to employ the beneficiary have already survived 
DOL review. The approved labor certification shows that counsel's arguments are not merely 
hypothetical; they rely upon assumptions contradicted by the record. 
Furthermore, an alien's replacement by a minimally qualified United States worker would only 
happen if the labor certification process yielded an application from such a worker (but not from any 
United States worker with qualifications above the minimum). In this instance, the beneficiary's 
approved labor certification proves that such a situation did not occur. We cannot be swayed by a 
hypothetical situation that contradicts the known facts of the proceeding. 
With regard to the asserted importance of "experience in [the petitioner's] instruction system," the 
beneficiary was clearly successful within months of her hiring, despite having had no previous 
experience in that instruction system. The record contains no evidence that the petitioner's other 
instructors struggle to master that system. The AAO is not persuaded by the argument that an 
instructor with barely a year of experience should receive a waiver to avoid being replaced by 
someone with less experience. 
When considering the scope of the beneficiary's impact, we cannot ignore the small class sizes 
emphasized in the record. While small class sizes can contribute to a more effective and 
personalized learning environment for the students involved, they also limit the number of persons 
directly affected by the beneficiary's work. The initial filing included the assertion that the 
beneficiary "has already trained dozens of members of the military." Whatever the scope of the 
overall mission of the petitioning institute as a whole, the beneficiary's individual impact has been 
considerably narrower. Case law specifically cites classroom teaching as an example of an 
occupation that lacks national scope. Matter of New York State Dept. of Transportation at 21 7, n.3. 
The director denied the petition on November 29, 2007, stating that the petitioner had not shown that 
the beneficiary's contributions are such that it would serve the national interest to exempt her from 
the job offerllabor certification requirement. The director also held that the beneficiary does not 
qualify for the waiver simply by virtue of being well qualified for her position. 
On appeal, the petitioner and counsel observe that the director's decision erroneously referred to the 
beneficiary as a self-petitioning "computer analyst." If the director had been consistently in error in 
this regard, then the petitioner would have a strong case for arguing that the director failed to review 
the petition. The director, however, also correctly identified the beneficiary's occupation, 
educational background, and employer elsewhere in the decision. It appears that the paragraph 
referring to the beneficiary as a self-petitioning computer analyst was copied from another decision, 
and not edited to bring it into conformity with the facts of the petition. The AAO does not ignore 
this error, but the error is editorial rather than adjudicative. (Counsel concedes as much, stating that 
the errors do not "mean that the decision was wrong.") The decision, taken as a whole, contains 
correct information, and the AAO will not vacate or invalidate the decision based on isolated errors.' 
1 
By way of analogy, Form ETA-750B, Statement of Qualifications of Alien (signed both by the beneficiary and by 
counsel), indicates that the beneficiary began worlung for the petitioner in April 2004, whereas the rest of the record - 
including the beneficiary's own resume - amply demonstrates that the petitioner hned the beneficiary in April 2006. 
Page 8 
Counsel also protests the director's characterization of the witness letters as having been written by 
the beneficiary's "current and former co-workers." Some witnesses were the beneficiary's students 
rather than co-workers, but this distinction would not have altered the outcome of the decision. 
Counsel states: "Another non-co-worker supporting letter was from 
Chinese Language Teachers Association of California." Counsel fail 
who stated "I work as the chair of Chinese Department E, Asian School I of [the petitioning 
institute]," is a "non-co-worker." 
Counsel, noting that most civilian jobs within the federal government are restricted to United States 
citizens, states: "The determination of the U.S. Department of Defense to employ (and sponsor the 
immigration of) an alien worker in this particular job has thus, already been a determination that the 
beneficial value of her work outweighs that 'overriding national interest"' inherent in employing 
United States citizens. 
 This is not an argument specific to the beneficiary, however. 
 The 
petitioner's own General Catalog 2006-2007 states, on page 6: "There are more than 1,100 civilian 
teachers employed at [the petitioning institute], most of them native speakers of the language they 
teach." Thus, it can be inferred that the petitioner relies heavily on immigrants as teachers. There is 
no indication that the petitioner routinely limits hiring of foreign-born staff to naturalized citizens 
and made a special exception for the beneficiary owing to her unique talents. Rather, USCIS records 
identify at least 80 immigrant and nonimmigrant petitions filed by the petitioner. Furthermore, many 
of the immigrant petitions filed by the petitioner were filed with approved labor certifications.' The 
AAO rejects the argument that the petitioner's willingness to hire non-citizens is presumptive 
evidence that its teachers qualify for the national interest waiver. 
Counsel contends that the transformation of the Immigration and Naturalization Service, a 
Department of Justice agency, into USCIS, a Department of Homeland Security agency, "is an 
historically clear signal from the elected branches of government - national security is not an issue 
to be disregarded in immigration matters." Those same "elected branches of government" chose to 
create the labor certification requirement, and refrained from exempting DOD employees when they 
could have done so. The placement of USCIS within the Department of Homeland Security is not a 
presumptive argument for granting the waiver specifically in this proceeding, or generally to 
members of the petitioner's teaching staff. 
Counsel asserts: "The considered, expressed and explained opinion of - as the 
representative of a Department of Defense agency, as to the national security based needs of this 
- - 
agency, should [be] appropriately taken into consideration by the CIS in evaluating whether the 
immigration of [the beneficiary] is in the national interest." The AAO has taken - 
arguments into consideration, and while the AAO is not deaf to concerns relating to national 
The AAO does not consider this isolated typographical error to be evidence of deliberate misrepresentation, or of the 
beneficiary's unfamiliarity with her own credentials and work history. 
2 
 In 2008 alone, the petitioner filed at least ten 1-140 petitions with approved labor certifications, with the following 
receipt numbers: LIN 08 220 52048; LIN 08 219 52712; LIN 08 211 50543; LIN 08 211 50525; LIN 08 201 50826; 
LIN 08 192 50478; LIN 08 192 50443; LIN 08 192 50438; LIN 08 192 50410; and LIN 08 187 50378. 
' Page 9 
security, the primary mission of the AAO is to enforce immigration laws, not to accommodate 
agencies whose own priorities or practices may conflict with those laws. The AAO 
above, the principal arguments advanced by both counsel and the petitioner (including 
Counsel argues that the petitioner has established that the beneficiary has a history of "specific prior 
achievements" that demonstrate her eligibility for the waiver. All of the specified achievements are 
personnel evaluations and awards presented by the petitioning entity itself. 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. To establish exceptional ability, a given 
alien must satisfy at least three of six specified criteria at 8 C.F.R. 5 204.5(k)(3)(ii). The regulation 
at 8 C.F.R. @ 204.5(k)(3)(ii)(F) calls for evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations. Therefore, the petitioner's recognition of the beneficiary would constitute part, but 
not all, of a claim that the beneficiary is an alien of exceptional ability. By statute, exceptional 
ability is not grounds for a national interest waiver; aliens of exceptional ability are, generally, 
subject to the job offer requirement. Therefore, the certificates and other evidence that amount to a 
partial claim of exceptional ability cannot suffice to qualify the beneficiary for the national interest 
waiver. We do not dispute the claim that the beneficiary's performance has been superior to that of 
many of her co-workers, but this does not compel a finding of eligibility. 
On December 15,2008, the AAO received a supplemental submission from counsel. A December 5, 
2008 DOD press release and accompanying fact sheet described a pilot program allowing the 
recruitment of certain nonimmigrant aliens, including "Enlisted Individuals with Special Language 
and Culture Backgrounds." The DOD has no jurisdiction over eligibility for immigrant 
classifications. Even if it were otherwise, the pilot program does not encompass the beneficiary. 
The pilot program specifically refers to "enlistment into military service." The beneficiary is not an 
enlisted member of the armed forces. She is, rather, a civilian DOD employee. The DOD press 
release is not relevant to the proceeding at hand, notwithstanding the use of the phrase "national 
interest" in the newly submitted fact sheet. 
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. 
1 36 1. The petitioner has not sustained that burden. 
This decision is without prejudice to the beneficiary's adjustment application or any further proceedings 
arising from the approval of the earlier petition filed by the petitioner on the beneficiary's behalf. 
ORDER: The appeal is dismissed.