dismissed EB-2 NIW Case: Mathematics

IdentlfylDgdatadeletedto
preventclearlyuDwarnnted
invasionof personalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services f)6"
Office: TEXAS SERVICE CENTER Date:
SRC 05 070 51023 AUG 07 2008
INRE: Petitioner:
Beneficiary:
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:
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.
~~~
ftObert P. Wiemann, Chief
Administrative Appeals Office
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
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 assistant professor. 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 had 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. For the reasons discussed below, we find that the
petitioner has not overcome the director's basis of denial.
Section 203(b) of the Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of
Exceptional Ability. --
(A) ill 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 requirement 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 petitioner holds a Ph.D. in Mathematics from the University of Ottawa. The petitioner's
occupation falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies
as a member of the professions holding an advanced degree. The remaining issue 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 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
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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 the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:
The Service 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 Dep t. of Transp., 22 I&N Dec. 215 (Comm. 1998), has set forth several
factors which must be considered when evaluating a request for a national interest waiver. First, it must
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be
shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver
must establish that the alien will serve the national interest to a substantially greater degree than would
an available U.S. worker having the same minimum qualifications.
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective"
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien
with no demonstrable prior achievements, and whose benefit to the national interest would thus be
entirely speculative.
The director did not contest that the petitioner works in an area of intrinsic merit, education, and we
find that he does. In the request for additional evidence, the director questioned whether the
proposed benefits of the beneficiary's occupation, assistant professor at a community college, would
be national in scope. In response, the petitioner asserted that his students are mobile people and that
math education will prepare them for jobs anywhere in the country. The petitioner further notes that
his work will not have an adverse impact on other regions. Matter of New York State Dep't of
Transp. 22 I&N Dec. 217, n. 7 provides:
For instance, pro bono legal services as a whole serve the national interest, but the
impact of an individual attorney working pro bono would be so attenuated at the
national level as to be negligible. Similarly, while education is in the national
interest, the impact of a single schoolteacher in one elementary school would not be
in the national interest for purposes of waiving the job offer requirement of section
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203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic
value, the work of one cook in one restaurant could not be considered sufficiently in
the national interest for purposes of this provision of the Act.
(Emphasis added.) The petitioner submitted documents, such as presidential speeches, attesting to
the importance of community colleges in training the U.S. workforce and the importance of well­
trained math and science teachers in general. We have already acknowledged above, however, that
the petitioner works in an area of intrinsic merit.
Initially, the petitioner asserted that his employer, San Antonio College, is one of nine community
colleges in the nation, and the only community college in Texas, selected to establish a pilot program
to support low-income underrepresented students to attain high-tech degrees. He submitted a press
release in support of this assertion. The petitioner also submitted evidence that he has designed
online computer courses. Finally, the petitioner submitted e-mail messages from former students
now continuing their education at universities around the United States.
While we acknowledge that any given teacher's students have the potential to continue their studies
or work across the country and, presumably, the world, we are not persuaded that this potential is
sufficient to consider the proposed benefits of a teacher's work as national in scope. The record
lacks evidence that the petitioner will be designing online or in-class courses for use by other
community colleges nationwide or that he will be otherwise influencing math education beyond San
Antonio, Texas. Thus, we are not persuaded that the proposed benefits of his work will be national
in scope.
It remains, then, to determine whether the petitioner will benefit the national interest to a greater
extent than an available U.S. worker with the same minimum qualifications. Initially and in response
to the director's request for additional evidence, the petitioner asserted that attracting highly trained
educators is a priority, noting that a labor certification to employ an alien as a college or university
teacher requires a lesser showing before the Department of Labor (DOL).! The director determined that
while the record may establish the national importance of assistant professors at community colleges in
general and the petitioner's qualifications for the job, the petitioner had not established that the benefits
of his skills outweigh the national interest inherent in the labor certification process. On appeal, the
petitioner asserts that his Ph.D. places him above other community college professors. The petitioner
further asserts that while his employer has granted him tenure, it will not pursue labor certification on
his behalf. Thus, he concludes, the approval of the petition may cost one U.S. worker a job but will
have a net benefit because the petitioner is more qualified to train future workers.
The fact that teaching at colleges or universities is an occupation designated by DOL for special
handling merely demonstrates that a mechanism already exists through DOL to address the national
I In support of this assertion, the petitioner submitted the instructions for the labor certification application.
Compare 20 C.P.R. § 656.3 (definition of "labor certification") with 20 c.P.R. § 656.21a(a)(1)(A)(iii)(2).
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interest of attracting highly trained educators by seeking labor certification for an occupation designated
for special handling. This matter is not before DOL. Citizenship and Immigration Services (CIS)
regulations make no such distinction for educators.
It is the position of CIS to grant national interest waivers on a case-by-case basis, rather than to
establish blanket waivers for entire fields of specialization, such as assistant professors with doctoral
degrees at community colleges. See generally Matter ofNew York State Dep't ofTransp., 22 I&N Dec
at 217. We note that Congress is capable of creating blanket waivers for certain occupations, such as
physicians working in underserved areas. See section 203(b)(2)(B)(ii) of the Act. Congress has not
passed a similar law providing a blanket waiver for faculty at community colleges holding doctoral
degrees. The policy of the petitioner's employer not to pursue labor certification on behalf of the
petitioner, despite granting him tenure, does not obligate CIS to waive that process in the national
interest. Even the inapplicability or unavailability of a labor certification cannot be viewed as sufficient
cause for a national interest waiver; the petitioner still must demonstrate that the self-employed alien
will serve the national interest to a substantially greater degree than do others in the same field. Matter
ofNew York State Dep 't ofTransp., 22 I&N Dec. at 218, n. 5.
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver. At
issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. !d. at 219, n. 6.
The petitioner has submitted several letters from other faculty at San Antonio College affirming his
qualifications for the job and his teaching skills. Some of the references assert that he is one of the few
qualified math professors also qualified to teach computer science courses. The petitioner also
submitted favorable evaluations, favorable classroom observation reports, two abstracts prepared by his
students, evidence that he received an extra stipend for developing two Internet courses and a letter
approving him for continuous tenure status four months after the date of filing. None of this evidence
indicates that the petitioner has influenced his field of math and computer science education beyond
San Antonio College. For example, the petitioner has not submitted evidence that he has published any
articles on teaching math or computer science, that he has influenced the development of Internet
courses for colleges around the United States or that he serves on any national committees designed to
set math or computer science education standards. Thus, the petitioner has not established a track
record of success with some degree of influence on the field of math or computer science education as a
whole.
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
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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.
This denial is without prejudice to the filing of a new petition by a United States employer
accompanied by a labor certification issued by the Department of Labor, appropriate supporting
evidence and fee.
ORDER: The appeal is dismissed.