dismissed EB-2 NIW Case: Martial Arts

DATE: 
IN RE: 
OCT 2 2 2012 
Petitiuner: 
l.3<.:neficiary: 
OFFICE: TEXAS SERVICE CENTER 
u.s. Department of Homeland S{'cUlil~ 
U.S. Cili/.cnshir and Illlrnigrnlillll Sl'TVicc:-­
i\dministr<lIi\"l: Arpeah OfficI.' (i\AO) 
20 Ma:--"achlT:--clh Avc .. N W., MS 2()')() 
\Vashingl()!1. 1)(" 2()"i29-2()!)() 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Professions Holding all Advanced 
Degree ()r an Alien of Exceptional Ability PurSuhnt [() Scction 2113Ch)C2) of thL' Immigration 
and Nati()nality Act. S USC § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All "f tile documents 
related tn this matter hav<.: heen returned to the office that originally decided your case. Please hc ad\"ised that 
any further in4uiry that you might have concerning your case must he made to that oJliL:c. 
If you helieve the 1\;\0 inappropriately applied the law in rcaching its dl:ci~illn, Of you havl: additional 
informatioll that }"tHJ wish to have considcn:d, you may file a motion to reconsidl:1 Of a motion to reopen in 
accordance \~ .... ith the instructions on Form 1-2Y013, Notice of Appeal Of Motion, with a rce or $(j30. ThL. 
specific requirements ror filing such a motion can he round at H CF.R. * IOJ.5. Do not file any motion 
directly with the AAO. Please he aware that H CF.R. § 103.5(a)(1)(i) requires all\' motion til he filcll williill 
30 Jays of the dc(ision Ihat the motioll seeks to reconsider or reopen. 
Thank you. 
Mu~, li:'t\...\.A.-';, tJ"-.--' 
7,/f'erry Rhe~ 
Chid. Administrative Appeals Office 
,,"ww.uscis.gO\ 
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), II U.s.c. § IIS3(b)(2), as an alien of exceptional ability in the sciences. the arts or business or 
as a member of the professions holding an advanced degree. The petitioner seeks 
martial arts athlete/instructor. Since 200ti, the petitioner has been an instructor at 
Academy in Brentwood, Tennessee. The petitioner asserts that an exemption from the 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 several supporting exhibits. 
In this decision. the term "prior counsel" shall refer to who represented the 
petitioner at the time the petitioner filed the petition.' The term "counsel" shall refer to the present 
attorney of record. 
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 arc 
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 
arc sought by an employer in the United States. 
(13) Waiv~r of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it 10 be in 
the national interest. waive thc requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United Statcs. 
I_consented to disbarment effective October 1,2012. A copy of the August 2~, 2012 oruer is available al 
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added to record October 11, 2(12). 
Pag~ 3 
The director tiJUnd that the petitioner qualifies as a member of the professions holding an advanced 
degree (although the AAO will revisit this issue further below). The director's sole stated basis for 
denial was that the petitioner had not 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 detinition 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 othem isc. .." S. Rep. No. 55, 101 st Cong., 1st Scss., II (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 608<)7, 60<)00 (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 clearl y 
an alien seeking to meet the [national interest 1 standard must make it showing 
significantly ahove 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. 
Maller of New York Slate Dept. of TrallSportatiolJ (NYSDOT), 22 I&N Dec. 215 (Act. A%oc. Comll1'r 
I <)<)8), 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 arca 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 it 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, it clearly must be established 
that the alien's past recordjustitics 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 benetit. 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. 
The AAO also notes that the regulation at S C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise signiticantly above that ordinarily encountered" in a given area of endeavor. By 
statute, aliens or exceptional ability are generally subject to the job offer/labor certification 
requirement: they arc 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 
Page 4 
an advanced degrce, that alien cannot gualify 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 1-140 petition on October 28, 2010, The petitioner submitted various 
materials to establish "the Benetits of Martial Arts to the US Population," These materials address 
the intrinsic merit of martial arts, but do not establish that the benefit arising from the work of one 
athlete/coach is national in scope, Furthermore, by their nature, general background materials do not 
distinguish the petitioner from others in his field, 
Certificates show that the petitioner "earned I" in Sn"rrmo" and ,,]'1 in Breaking" at the 41h Yong-ln 
University Presidential Cup International and "FORMS 1'1 Place 
Gold" at the 21 'I Annual HMA International . Other 
certificates describe the petitioner's achievements at Yong In University and before, A translated 
license in the record shows that the beneficiary holds the title of a 2"d Class Umpire. "Dan 
CertiIicates" show that the petitioner has attained 41h or 51h level black belts in several martial arts. 
These materials establish that the petitioner has some expertise in martial arts, but they do not sclf­
evidently address the issue of the national interest waiver. No statute or regulation has establishcd a 
blanket waivcr for martial artists above a given dan leveL 
A section of the record marked "Press Materials Referring to [the petitioner's1 Services" contains 
only one document - a photocopied print advertiscment for Yong In Martial Arts Academy, listing 
two locations south of Nashville, Tennessee (one in Franklin, one in Brentwood). The petitioner's 
name does not appear in the advertisement. 
Th~al witness letters, witness appears to be 
"a~, and the record includes 
various materials establishing reputation , is little more 
than a list of the petitioner's various credentials in thc martial arts ofYongmoodo, .Iudo, Kumdo and 
Taekwondo, with _ assertion that thc petitioner "is an accomplished and internationally 
recognized athlete/coach" who has had a "distinguished career in the field of Martial Arts. The 
evidence regarding reputation and acclaim docs not indirectly rcllect on the petitioner. 
Rather, it shows the extent to which a martial arts expert can achieve visibility and recognition in his 
or her field, without showing that the petitioner has approached that leveL 
Likc _ the remaining witnesses confidence in the petitioner's abilities as a 
martial artist but provided few details, of Yong In University (where 
the petitioner earncd his bachelor's and master's degrees), said that petitioner, as a student, "was 
extremely qllick to learn and communicate the concepts of [the university'sl programs" _ 
stated: "[the petitioner] was onc of my most talented students .... He is both pro ess'lorlall 
academically sound in his chosen field of specialization, namely, Physical Educatioll." 
concluded that the petitioner "will he an incredihlc asset to the United States or America. 
SpeciIically by teaching healthy lifestyle and various martial arts techniques." 
Page 5 
Several witnesses own martial arts schools in Kentucky and Tennessee. 
and Bartlett. Tennessee. praised the 
petitioner"s "humble attitude along with a willingness to try hard and accomplish whatever he sets 
his mind to." 
Erlanger. Kentucky. stated: 
I have known and worked with [the petitioner] over the last four years. and have 
found him to be of impeccable personal character and a highly skilled and able 
martial arts instructor. whose professionalism knows no bounds. An accomplished 
scholar and martial arts expert in his own right. [the petitioner] has demonstrated an 
incredible depth of knowledge in his field as well as an innate ability to transfer his 
skills and knowledge to students of all ages and abilities. 
with four locations in Louisville. Kentucky. 
stated that the petitioner "is internationally recognized in our sport as a top athlete and instructor. 
Few individuals in his generation surpass his record of achievement.·· however. 
provided no further details. 
A number of witnesses have no evident expertise in martial arts. 
with Promega Corporation." stated: 
I have known [the petitioner] for approximately one year and have been nothing but 
impressed by his skill. ability. knowledge. and demeanor during that time, ... I am 
very impressed with his ability to connect with students and utilize his understanding 
of their individualized strengths and weaknesses to help them achieve their goals. 
(who lists the same residential address , stated: 
[The petitioner] has proven himself to be a master of his field and possessing the 
professional attributes that one would hope for in any United States citizen. I have 
been a student of [the petitioner] for nearly one year. ... His advanced training and 
knowledge of kinesiology. physical education. and martial arts set him apart. even 
among his peers. 
Three witnesses (including a realtor and an automobile salesman) signed separate copies of the same 
letter that reads: 
This letter is writlen to show my strong support for the subject individual. I have 
known [the petitioner] for about 1.5 years. I interact with him on an almost daily 
basis. I have always found him to be most professional in his job and his dealings 
with his social environment. He is hard working. sincere. dedicated and expresses a 
strong desire to see his customers succeed in their objectives. 
Pag!.: () 
[The petitioner] is extremely friendly, outgoing, and makes those around him feel at 
ease. He is honest and trustworthy in his dealings with others and makes others 
respond to him in the same fashion. 
I support [the petitioner] in his endeavors and offer these comments to help a very 
worthy young man move forward with his life's goals. 
The letters establish that the petitioner has earned the respect of his colleagues and others, but most 
of the letters provide minimal information about what sets the petitioner apart from others in his 
field. pointed to the petitioner's "advanced training and knowledge of kinesiology. 
physical education. and martial arts." but this amounts to praise for the petitioner's background 
which does not point to any specific accomplishments. 
On August 17, 2011, the director issued a request for evidence, instructing the petitioner to submit 
further documentation to meet the guidelines spelled out in NYSDOT. The director acknowledged 
the witness letters. but found that they lack evidence of the petitioner's intluence on his tield. 
In response, the petitioner submitted evidence describing how martial arts training can help children 
with problems ranging from bullying to obesity to autism to cancer. Prior counsel asserted that 
"scll~defcnse techniques" also help women fcnd otf attackers and domestic abusers. As before. 
these materials address the intrinsic merit of the petitioner's occupation but do not establish the 
national scope of the benefit from the work of one coach. 
In an efhlrt to show how he stands apart from others in his field, the petitioner submitted additional 
letters. Prior counsel stated that these letters arc "from experts outside and inside Ithe petitioner'sl 
circle." including highly qualified masters. The qualitications of these experts. however. mean little 
when their letters offer minimal information about the petitioner. A letter from •••••• 
for instance, contains 11 sentences about own background. 
t()lIowed by two sentences about the petitioner: "My qualitications allow me to highly recommend 
[the petitioner] in the martial arts. He has been dedicated to building better lives for others through 
his martial arts skills." 
Letters from other witnesses contain scarcely more detail about the petitioner's achievements . 
•••••••••••••••••••••• and head coach 
team, offered strong praise for the petitioner, but entirely in the 
form of generalities. such as: "1 ... consider his current etforts and continued dedication as a useful 
contribution to bilateral cultural exchange between the United States and South Korea. Through his 
efforts he demonstrates a desire to continue his lifelong pursuit of teaching and preserving the 
history and line traditions of martial arts." 
Similarly stated that the petitioner's "credentials are impeccable. 
his education, dedication and character are above reproach. [The petitioner] demonstrates on a daily 
Page 7 
basis the meaning of the art of Tae Kwon [)o'" The petitioner submitted numerous similar letters 
from martial arts instructors as well as local public figures such as a member of the Tennessee state 
senator and a state circuit court judge. Such letters are inherently inadequate to qualify the petitioner 
for the national interest waiver. regardless of their quantity or the qualifications of those who signed 
them. USC IS must consider not by the quantity of evidence alone, but also its quality. See Maller of 
F-M-. 20 I&N Dec. 77. kO. 
s work on themselves or children whom they 
arc teachers who state that their students became more 
"'-'f""'~U after those students took lessons from the petitioner. Similar! y , ••••••• 
stated that the petitioner "has been highly instrumental in the life of 
raj young boy" with "a medical history of Developmental Delays. which have included delayed 
motor skills. balance. focus and attention." The petitioner also submitted letters trom the parents of 
several of his students, detailing how the petitioner has helped the children. The petitioner, however, 
had also submitted background evidence citing these types of improvements as general reasons for 
children to study martial arts. If these improvements are inherent to the study of martial arts, then 
anecdotal reports of such results do not distinguish the petitioner from others in the field. 
The director denied the petition on February 6, 2012. The director quoted examples of witness 
letters. and stated: "The letters of support provided are letters of reference and testimonial of the 
beneficiary'S knowledge and expertise in martial arts. However the letters do not demonstrate that 
the benetieiary has had an impact on the lield of martial arts." The director also eonduded that the 
petitioner had not shown that the petitioner's activities with his present employer have provided a 
benefit that is national in scope. 
On appeal. counsel notes that the petitioner entered the United States under a "]'-1 A nonimmigrant 
visa ... granted based on his accomplishments and distinguished career in the lield or martial arts." 
There is no nonimmigrant classification that presumptively qualifies an alien for the national interest 
waiver. Counsel cites the regulations in the subsections of 8 CF.R. § 214.2(p)(4)(ii)(13)(2), which 
list the criteria by which an athlete can establish "an internationally recognized reputation as an 
international athlete." The AAO notes that the petitioner entered the United States as a P-IA 
nonimmigrant on May 13, 200g. He filed the present Form 1-140 petition almost two and a half 
years later. The record is devoid of evidence that the petitioner's activities during that time served to 
maintain an internationally recognized reputation as an international athlete. Instead, he has taught 
martial arts to children and amateurs. The record before the AAO contains no evidence that readily 
suggests the petitioner has continued "to peri(wm services which require an internationally 
recognized athlete." which is the regulatory standard for P-IA nonimmigrant athletes. See tl CF.R. 
§ 214.2(p)(4)(i)(A). 
Counsel then addresses the three prongs of the NYSDOT national interest test. The intrinsic merit of the 
petitioner's occupation is not in dispute. and so requires no detailed discussion here. In terms of 
national scope, counsel points to national efforts to combat childhood obesity, autism, and other ills that 
martial arts training may affect. These assertions, however, do not establish that the work of a single 
Page X 
martial arts instructor has a national effect. Rather, the benefit appears to be largely restricted to the 
petitioner's individual students. 
Counsel maintains that the director failed to give due weight to the witness letters. The opinions of 
experts in the field arc not without weight and have received consideration above. USCIS may, in 
its discretion, use as advisory opinions statements submitted as expert testimony. See Mat/er of 
Carol[ /rc(ema(iof1a/. 19 I&N Dec. 79 L 795 (Comm'r 1988). However, USC!.S is ultimately 
responsible for making the tinal determination regarding an alien's eligibility for the benefit 
sought. ld. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to whether they 
support the alien's eligibility. USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. See Id. at 795; see also 
Matter of V-K-, 24 I&N Dec. SOO, 502 n.2 (BIA 200t;) (noting that expert opinion testimony does 
not purport to he evidence as to "face). See also Matter of Soffiei, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of TreaslIre Craft of California, 14 I&N Dec. 190 (Reg' I Comm'r 1972)). 
As noted previously, the letters from high-ranking martial artists contain negligible information about 
the petitioner's contributions or intluence on his field. The witnesses simply expressed confidence in 
~tioner's abilities as an instructor. A new letter, submitted on appeal, continues this pattern. _ 
_ states that the petitioner ··has contributed numerous techniques to the Martial Art of Judo," but 
offers no information about what those techniques are. likewise states 
that the petitioner ··creates ditferent techniques I()r difkrent ages 
is devoid of specific details. 
The appeal includes a second letter from stating that the petitioner ··has developed 
techniques that are instrumental in transitioning the Martial Arts athlete. His techniques introduce hand 
movements that lead the student easily into the forms of the martial art." This witness's tlrst letter 
contained no mention of these techniques (to be discussed further below). 
Counsel takes issue with the director's conclusion that the letters are "general'" in nature. asserting that 
the petitioner ··submitted OVer 30 letters that describe with specitieity the bcnetits his students have 
received after taking his martial arts classes." To do this, however, counsel shilis the focus ti'om the 
··expert·· letters to the letters Irom teachers and parents. Counsel, thus, relics on the reputations of one 
set of witnesses, and on the level of detail in letters from a second, completely different set of witnesses. 
The non-expert witnesses did. indeed. provide information about the effect of the petitioner's work on 
individual students, but this effect is limited and local. The petitioner has not shown that it is in the 
national interest to ensure that he, rather than another qualified instructor, be the one to continue 
instructing these particular students. 
Counsel states that the petitioner "has developed hand techniques that he has not only exhibited to 
other studios the country but also are being incorporated by other Masters in their 
classes." new leller contains a brief mention of these techniques. Prior to the 
appeal, the petitioner had made no claim to have innovated new methods. adopted by others. Neither 
Pagc <) 
the petitioner nor counsel explains why this infonnation did not come to light in response to the request 
/()r evidence, in which the director had specitically solicited cvidence of the petitioner's inJluence on 
others in his field, 
The petitioner indicates that he "developed these techniques over a period or 6-12 months:' but docs not 
specify when that period was, Again, he did not mention these techniques in his October 20IO petition 
or Ilis response to tile August 2011 request for evidence, The petitioner submits "II/etters from three 
studios in Ohio, New Jersey and Virginia that have incorporated the hand techniques developed by [the 
petitioner]:' but these letters (all dated March 2012) do not say when the studios adopted the techniques, 
Before the appeal. the petitioner never claimed to have invented influential new instructional techniques 
in martial arts. (Even counsel's own three-page preliminary appellate statement contains no mention of 
the new hand techniques.) Therefore, the director cannot possibly have taken those techniques into 
account when rendering the decision. The director's failure to anticipate a future claim by the petitioner 
is not an adjudicative error that would warrant reversal on appeal. 
An applicant or petitioner must establish that he or she is eligible for the requested benefil at the time 
of filing the application or petition, 8 C.F,R. ~ 103.2(b)(I). Therefore, subsequent events cannot 
cause a previously ineligible alien to become eligible after the filing date, See Malter of Katighak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). i\ petitioner may not make material changes to a petition 
that has already been filed in an effort to make an apparently deficient petition conform to USCIS 
requirements. See Muller of IZllmmi, 22 I&N Dec. 169, 175 (Comm'r 1998). Here, the petitioner 
has introduced an entirely new element into his waiver claim. Even then, the record contains 
minimal evidence to show that others in the field consider the new hand technique to be a significant 
improvement over methods already in use, 
The petitioner submits a copy of his master's thesis. Authorship of a thesis appears to be a basic 
requirement for completion of a master's degree; its existence does not distinguish the petitioner 
from others who hold that degree. 
The petitioner also submits an cxhibit described as a "Journal article about and I the 
petitioner I in the Tennessean Brentwood Journal dated ... March 28, 2012." The article appeared 
not in a journal. but in a local daily newspaper with the word "Journal'" in its name. The 
anonymously written article, "Olympic Judo expert visits Brentwood martial arts academy," focuses 
mostly on _"a Sixth Ring Member or the United States Olympic Committee'" The portion 
of the article dealing with the petitioner reads: 
During his visit, •. . praised [the petitioner] for his superb teaching and discipline 
skills and congratUlated [the petitioner], who has distinguished himself in his 
contributions to judo and taekwondo in the United States. 
Page 10 
• recognized the innovative techniques developed by [the petitioner], which allow 
him to demonstralc to his students that f()CUS, hard work and due diligence <Ire 
indispensable to achieve goals. 
The article, which appeared in print seven weeks after the director denied the petition, continues the 
pattern of crediting the petitioner with developing an innovative technique, while providing no 
information about that technique. The article does not change the finding that mention of the 
petitioner's new tcchnique is a late addition to the record rather than an integral clement of the 
national interest waiver presented to the director in the initial filing and subsequent response to the 
request for evidence. 
On the basis of the evidence submitted, the petitioner has not establislled that <I waiver of the 
requirement of an approved labor certification will be in the national interest of the United States. 
Beyond the director's decision, the record reveals another area of concern. The AAO may deny an 
application or petition that fails to comply with the technical requirements of the law even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer 
El1terprises, Illc. v. United States, 229 F. Supp, 2d 1025, 1043 (E.D. Cal. 200!), u(rd, 345 F.3d 683 
(9th Cir. 20(3); see a/so Sultal1e v. DO'!, 381 F.3d 143, 145 (3d Cir. 20(4) (noting that the AAO 
conducts appellate review on a de 1101'() basis). 
In filing the petition, the petitioner did not specify whether he sought classification as a member of 
the professions holding an advanced degree or as an alien of exceptional ability in the sciences, the 
arts or business. Prior counsel left the question open, stating that the petitioner "is a member of the 
professions holding an advanced degree or an alien of exceptional ability." 
The director, in the denial notice, stated: '"the beneficiary holds a Master's degree in Physical 
Education from Yong In University. Therefore, the beneficiary is qualified as a person holding an 
advanced degree." The statutory standard, however, is not '"a person holding an advanced degree." 
Rather, such persons must also be "members of the professions." See section 203(b)(2)(A) of the 
Act. The USCIS regulation at 8 C.F.R. § 204.5(k)(2) delines a "profession" as "'one of the 
occupations listed in section IOI(a)(32) of the Act, as well as any occupation for which a United 
States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation. 
"Martial arts athlete/instructor" is not one of the occupations listed at section 10 I (a)( 32) of the Act. 
The petitioner submitted no evidence to show that the occupation of "martial arts athlete/instructor" 
is a profession, requiring at least a bachelor's degree tc)r entry into the occupation. On Form 1-140, 
the petitioner listed his occupation's SOC (standard occupational classification) code as 25-3021. 
According to the O*NET database, created for the Department of Labor's Bureau of Labor Statistics 
(13LS), that SOC code corresponds to "self-enrichment education teachers," a category that includes 
martial arts instructors and others who "It]each or instruct courses other than those that normally 
Icad to an occupational objective or degree." 
Pagt: II 
The BLS's Occup([tioll([l Outlook Handbook reports that '"entry-level education" fClr a sell~ 
enrichment teacher is a "[h]igh school diploma or equivalent. .. 2 O"'NET reports that only 20% of 
survey respondents required at least a bachelor's degree for such teachers.' Thus. there is no basis to 
conclude that the petitioner's occupation meets the regulatory definition of a profession. 
Furthermore. the USCIS regulation at 8 CF.R. ~ 204.5(k)(3)(i)(A) requires the petitioner to submit 
"laJn official academic record showing that the alien has an United States advanced degree or a 
foreign equivalent degree." The petitioner's master's degree is trom a university in Korea. The 
record contains no evaluation showing that the degree is equivalent to a United States advanced 
degree. 
For the above reasons. the AAO will withdraw the director's 1inding that the petitioner qualities as a 
member of the professions holding an advanced degree. There remains the question of whether the 
petitioner qualifies, instead, as an alien of exceptional ability in the sciences, the arts or business. 
Some of the exhibits submitted by the petitioner appear to relate to evidentiary standards of 
exceptional ability spelled out in the USCIS regulation at 8 CF.R. ~ 204.5(k)(3)(ii). Nevertheless, 
the initial determination on this question is the responsibility of the director rather than the AAO. 
Therefore, the AAO will not attempt a detailed discussion of the issue here. Furthermore, a finding 
of exceptional ability would not overcome the denial of the national interest waiver, and therefore it 
would serve no practical purpose to remand the decision to the director for an initial finding on the 
exceptional ability issue. 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternative basis for dismissaL In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 USC § 1361. Here, the 
petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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