dismissed EB-2 NIW Case: Mathematics Education

(b)(6)
DATE: JAN 0 7 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr ative 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 : 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consider ation, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/fot·ms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~ 
\ 
l\1\cv~~Vv~-_./ 
( \ 
~ Ron Rosenberg) 
/1 Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the hnmigration 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 a mathematics teacher in Maryland. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief from counsel. 
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, lOlst Cong., 1st Sess., 11 (1989). 
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In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Id. 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. Id. at 217-18. 
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. Id. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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. Id. 
The USCIS 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 of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140 petition on October 24, 2011. The petitioner's most recent 
claimed employment ended in June 2008, shortly before he left the Philippines. The petitioner 
claimed no paid employment in the United States. The petitioner 's H-4 nonimmigrant status does 
not authorize him to work in the United States, but counsel stated that the petitioner "offered his 
services for free to American Children at 
Maryland since March 2011 as a volunteer Mathematics teacher." 
Counsel stated: 
[The petitioner's] expertise is evidenced by his advanced degree (Masters) in 
Mathematics; his over twenty five (25) years of teaching experience; his authorship of 
several Mathematics books; his well-praised work as Mathematics trainer, coach, 
lecturer, trainer throughout the years; and the multitude of awards and citations he 
obtained from prestigious institutions both here in the US and the Philippines. 
Academic degrees, experience, and recognition are all factors that can support a claim of exceptional 
ability under the regulation at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and (F), respectively. Because 
exceptional ability does not, by itself, warrant approval of the waiver, it cannot suffice for the 
petitioner to establish these factors. He must, rather, make a showing significantly above the 
substantial prospective benefit that arises from exceptional ability. The petitioner cannot simply list 
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his recognitions and certificates; he must also demonstrate their significance with credible, objective 
evidence. Counsel called the petitioner's recognitions "prestigious" but cited no evidence of their 
claimed prestige. The unsupported assertions of counsel do not constitute evidence. See Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Counsel claims that several of the certificates reproduced in the record are awards. Several of these 
certificates are from the petitioner's employers, and do not establish recognition outside of 
institutions where the petitioner has worked. Other certificates do not appear to represent awards. 
They reflect the petitioner's participation in events rather than specific achievements or 
contributions, while still others pertain to religious activities unrelated to his work as a math teacher. 
Certificates from the 
do not relate to teaching work. Instead, they acknowledged his unspecified contributions to 
workshops entitled "Immigration Information - Exploring Options" and "Alternative Immigration 
Options for Teaching Professionals." 
With respect to counsel's assertion regarding the petitioner's "authorship of several Mathematics 
books," the petitioner's initial submission included four books, all published in the Philippines 
between 2001 and 2008. The petitioner was one of six authors of 
workbook published in 2002. The petitioner also wrote 
The book is primarily a compilation of essays by math 
students; its subtitle is ' ... · · 
· ~ ·· ~ · ~ ·· The etitioner was not an author of the other two books. Rather, he was one of four 
editors of . and one of three consultants on 1 ~­
The petitioner did not submit evidence to establish the significance or impact of these publications. 
The petitioner established the use of .. _ 
in 2003. The petitioner was on the faculty of that school at the time, as 
was another of the book's co-authors The petitioner did not establish the extent 
of the book's use at other institutions or provide a basis for comparison with other books that serve 
the same purpose. 
The petitioner submitted letters from teachers, administrators, and students at schools where he has 
taught, as well as others who know him such as the minister at his church. These witnesses attested 
to the petitioner's skill as a teacher, his mastery of the subject matter, and his relations with school 
staff. They did not, however, establish that the petitioner stands out to a degree that would warrant 
the special benefit of the national interest waiver. 
The petitioner's initial submission established his experience' and dedication as a teacher, but did not 
address the guidelines in NYSDOT to show how he qualifies for the national interest waiver. 
The director issued a request for evidence on April 24, 2012, stating that the petitioner must meet the 
NYSDOT national interest guidelines. In response, counsel established the intrinsic merit of 
education in science, technology, engineering, and mathematics (STEM), and stated that there is a 
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national crisis in STEM education. This crisis does not establish that the petitioner, individually, has 
had or will have a national impact in STEM education. To address a national problem at a local 
level does not yield national results. 
Counsel stated: "what has determined the employment of [a] Math teacher as national in scope are 
existing Federal Laws" that emphasize the importance of math and STEM education. These 
initiatives establish the collective national importance of math education; they do not lend national 
scope to the efforts of individual teachers. NYSDOT states: "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 203(b)(2)(B) ofthe Act." /d. at 
217 n.3. The precedent decision used the term "elementary school" as an illustrative example, rather 
than to suggest that only elementary school teachers lack national scope. 
With respect to the petitioner's experience, counsel stated that the petitioner has "over (30) years of 
professional work as [a] Mathematics teacher"; elsewhere, counsel stated that the petitioner has 
"almost three (3) centuries [sic; counsel apparently meant "decades"] of dedicated service in that 
profession." Counsel stated that it is "economically wholesome" to take advantage of the 
petitioner's experience "instead of waiting for three (3) centuries until U.S. workers become as 
highly qualified as he is." This assertion presumes that there are no experienced math teachers in the 
United States, and therefore it would take decades before any U.S. teacher reaches the level of 
experience that the petitioner has already attained. 
With respect to counsel's assertions that the petitioner has "more than 25 years of experience" and 
"over (30) years of professional work," the record shows 24 years of employment from June 1984 to 
June 2008, followed by several years of apparent inactivity and then several months of part-time 
volunteer activity shortly before the filing of the petition in 2011. 
Counsel stated that the Department of Labor will consider "only a bachelor's degree" for labor 
certification purposes, which "would not meet the objective of the employer to hire highly qualified 
teachers pursuant to No Child Left Behind (NCLB) Law." Section 9101(23) of the No Child Left 
Behind Act (NCLBA), Pub.L. 107-110, 115 Stat. 1425 (Jan. 8, 2002), defines the term "highly 
qualified teacher." By the statutory definition, a "highly qualified" school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination , and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• demonstrates competence in the academic subjects he or she teaches. 
Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if 
he or she has "had certification or licensure requirements waived on an emergency, temporary, or 
provisional basis." Counsel did not explain how the above requirements are incompatible with the 
existing labor certification process. The minimum degree requirement, which counsel has 
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emphasized, is the same for labor certification as it is for a highly qualified teacher (i.e., a bachelor's 
degree). 
Counsel stated that there are "other important variables" that the labor certification process cannot 
take into account. "In other words, even if two (2) teachers have exactly the same education degrees 
and work experience, their effectiveness cannot be identical. One of them would be more effective 
than the other because of other unquantifiable factors that zero in on 'passion."' Counsel did not 
explain why, in this hypothetical matchup, the petitioner would inevitably emerge as superior to the 
other candidate for the position. It is true that no two candidates for a job are exactly identical, but 
it does not follow that experienced foreign teachers ought to be exempt from labor certification. The 
statutory job offer requirement applies to all professionals, including teachers, and counsel identified 
no specific provision of statute, regulation, or case law to supersede or overrule that provision. 
The petitioner submitted background materials about math education, which address the intrinsic 
merit of his profession but not the other two prongs of the NYSDOT national interest test. 
The petitioner also submitted copies of certificates newly issued after the petition's October 2011 
filing date. The certificates are insufficient, both in terms of significance and in terms of timing. 
With regard to significance, these certificates, like those submitted previously, establish recognition 
only at the local level, from the school where he volunteered and from the state chapter of AFfA, 
and therefore they do not establish that the benefit from the petitioner's work is national in scope. 
Furthermore, with regard to timing, an applicant or petitioner must establish that he or she is eligible 
for the requested benefit at the time of filing the benefit request. 8 C.F.R. § 103.2(b )(1 ). The 
petitioner's response to a request for evidence must likewise establish eligibility as of the filing date. 
8 C.F.R. § 103.2(b)(12). 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 submitted copies of various credentials and positive evaluations from different points 
in his teaching career. These materials attest to his competence as an educator, but the threshold for 
the waiver of the job offer requirement is not simply a high level of job performance. Rather, the 
petitioner must establish that it is_ in the national interest to waive a requirement that, by statute, 
routinely applies to workers in his profession- even those who exhibit exceptional ability. 
The director denied the petition on April 11, 2013, stating that the petitioner had met only the first 
prong of the NYSDOT national interest test, by establishing the intrinsic merit of education. The 
director stated: "The fact that the beneficiary is qualified for the job does not warrant a waiver of the 
job offer and labor certification requirement." 
On appeal, counsel acknowledges that NYSDOT constitutes binding precedent, but asserts that the 
precedent decision offers little specific guidance as to what, exactly, serves the national interest. 
Counsel contends that "[t]he obscurity in the law that NYSDOT sought to address has been 
clarified": 
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NON-PRECEDENT DECISION 
[T]he United States Congress has spelled out the national interest with respect to 
public elementary and secondary school education through the No Child Left Behind 
Act of 2001 ("NCLBA"), 8 U.S.C. § 6301 et seq., which came into effect upon its 
enactment in 2001 - that is, more than a decade after IMMACT 90 and MTINA were 
enacted and three years after NYSDOT was designated as a precedent decision .... 
Accordingly, the NCLBA and the Obama Education Programs, taken collectively, 
provide the underlying context for the adjudication of a national interest waiver 
application made in conjunction with an E21 visa petition for employment as a 
Highly Qualified Teacher in the public elementary education sector. ... 
[I]n the instant case, USCIS gave insufficient weight to the NCLB Act because it 
confined its consideration of that law to the first NYSDOT factors. 
The NCLBA, however, did not amend the Immigration and Nationality Act or even mention the 
national interest waiver. 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport, 495 U.S. 552 (1990). Statutory language must be given conclusive 
weight unless the legislature expresses an intention to the contrary. Int'l. Brotherhood of Electrical 
Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). Where the 
language of a statute is clear on its face, there is no need to inquire into Congressional intent. INS v. 
Phinpathya, 464 U.S. 183 (1984). The lack of a statutory definition ofthe phrase "national interest" 
does not supersede the unambiguous statutory language at Section 101(a)(32) of the Act, which 
states that school teachers are members of the professions, and section 203(b)(1)(A) of the Act, 
which states that members of the professions with advanced degrees are subject to the job offer 
requirement. Counsel has provided no support for the assertion that Congress passed the NCLBA 
for the direct or indirect purpose of clarifying the definition of "national interest" (a phrase that does 
not appear in the text of the NCLBA). 
Counsel quotes from section 203(b )(2)(A) of the Act, and claims that, "[b ]ased on these statutory 
provisions," the petitioner qualifies for the waiver "if it is established that he will substantially 
benefit prospectively the national educational interests ofthe United States." This is a misreading of 
the statute, which states that foreign workers who "will substantially benefit prospectively the 
national ... educational interests, or welfare of the United States" can qualify for employment-based 
immigrant classification if their "services ... are sought by an employer in the United States." This 
latter clause embodies the job offer requirement. 
The Immigration and Naturalization Service (the Service) addressed the above issues when it 
promulgated the regulation at 8 C.F.R. § 204.5(k) and its subsections: 
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NON-PRECEDENT DECISION 
Some commenters also asked that the phrase "in the national interest" be defined. 
One commenter suggested that the phrase should apply to any alien who would 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States. The Act itself requires this showing of all 
aliens seeking to qualify as "exceptional," but adds the "national interest" test to 
permit a job offer waiver for certain aliens who have already satisfied the 
"prospective national benefit" test. The Service, therefore, cannot equate the two 
standards . Congress has not provided a more particular definition of the phrase in the 
national interest. The Service believes it appropriate to leave the application of this 
test as flexible as possible, although clearly an alien seeking to meet the standard 
must make a showing significantly above that necessary to prove "prospective 
national benefit." 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 will be 
judged on its own merits. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991). A condensed version of the above passage appeared in 
NYSDOT at 216-17. The quoted passage rebuts counsel's contention on appeal that the "prospective 
national benefit" test is identical to the "national interest" test. 
Counsel states that the director's "decision did not present 
even one comparative candidate having at 
least the equivalent accomplishment as that of [the petitioner] to support its determination." The 
burden of proof rests on the petitioner, not the director. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). There is no presumption of eligibility, and 
there is no requirement that the director must identify and produce a "comparative candidate" whose 
qualifications equal or surpass those of the petitioner. 
Comparing NYSDOT to the present petition, counsel asserts that "the facts are definitely distinct 
from each other, not to mention subsequent legislations intended to provide guiding principles to 
implement Immigration Act of 1990 (IMMACT 90)." The facts of the petitions are different in that 
the beneficiary in NYSDOT was an engineer rather than a teacher, but the NYSDOT national interest 
test is, by design, broadly applicable and not limited to engineers. 
With respect to "subsequent legislation," the Miscellaneous and Technical Immigration and 
Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991) made the 
national interest waiver available to members of the professions holding advanced degrees, where 
previously it was available only to aliens of exceptional ability. Following the publication of 
NYSDOT, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 
Stat. 1312 (1999), specifically amended the Immigration and Nationality Act by adding section 
203(b )(2)(B)(ii) to that Act, to create special waiver provisions for certain physicians. Thus, 
Congress not only can amend the Act to clarify the waiver provisions, but has in fact done so on two 
occasions, first to correct an omission of language, and later in direct response to NYSDOT. Counsel 
has identified no other legislation that directly addresses the national interest waiver in this way. In 
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the absence of a comparable provision in the NCLBA or any other education-related legislation, 
there is no basis to conclude that the legislation indirectly implied a blanket waiver for teachers. 
Counsel claims that NYSDOT "requires overly burdensome evidence on the qualification [sic] of the 
self-petitioner, identical to EB-1 extraordinary requirements." Counsel, here, refers to the 
"extraordinary ability" classification at section 203(b )(1 )(A) of the Act. That classification requires 
"sustained national or international acclaim," and the implementing regulations at 8 C.P.R. 
§ 204.5(h)(3) require a petitioner to meet at least three of ten specified standards. The regulatory 
definition of "extraordinary ability" at 8 C.F.R. § 204.5(h)(2) requires a demonstration that the 
beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor." 
The director did not impose so strict a requirement in the present instance. To say that one has had 
significant impact on one's field is not the same as saying that one has reached the very top of that 
field, or has earned sustained national or international acclaim in that field. NYSDOT stands as 
binding precedent and the director did not err by relying on that decision. 
Counsel quotes remarks made by then-President George H.W. Bush when he signed IMMACT 90: 
"This bill provides for vital increases for entry on the basis of skills, infusing the ranks of our 
scientists and engineers and educators with new blood and new ideas." Counsel interprets this 
passage to mean that Congress created the national interest waiver for educators, but the job offer 
requirement for which the petitioner seeks a waiver was, itself, an integral provision of IMMACT 
90. President Bush's quoted remarks did not specifically mention the national interest waiver, and 
there is no evidence that the remarks referred particularly to the waiver, rather than to IMMACT 90 
as a whole. The national importance of "education" as a concept, or "educators" as a class, does not 
lend national scope to the work of a single schoolteacher. 
Counsel states: "The standard in other words is not national geography but national intellection 
directed to recapture the nation's economic dominance. This is what is called 'Bridging the Gap.' 
Syllogistically, hiring 'Highly Qualified Teachers' would produce more graduates than dropouts." 
This statement confuses the national impact of federal education policy with the national impact of 
one schoolteacher. Also, it relies on the assumption that the hiring of "Highly Qualified Teachers" 
has, in fact, increased graduation rates. Counsel offers no evidence to support this claim. Counsel 
cites various Department of Education publications concerning the goals of the NCLBA and other 
federal programs, but no evidence documenting the results of those programs a decade after the 
NCLBA's enactment. Instead, counsel cites recent statistics regarding poor student performance by 
students in Maryland (where the petitioner seeks employment), several 
years after the passage of the NCLBA. Eligibility for the waiver rests on the merits of the individual 
seeking the waiver, and the record does not show that the petitioner has had or will have a nationally 
significant impact on graduation rates. Being a "Highly Qualified Teacher" under the NCLBA does 
not establish or imply eligibility for the national interest waiver. 
Counsel states: 
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USCIS-Texas Service Center has not specified what it meant by 'any contributions of 
unusual significance that would warrant a national interest waiver.' There is no 
clarity on this particular requirement and yet, the Director has easily dismissed the 
incomparable accomplishments of [the petitioner] as submitted in her [sic] Case File. 
By requiring the petitioner to submit evidence of ambiguous nature is 'unduly 
burdensome' and in effect tantamount to requiring 'impossible evidence' for being 
extremely subjective. 
The lack of clear standard on this particular requirement leaves the finding of 
insufficiency by USCIS-Texas Service Center highly speculative, without factual 
basis and rather 
drawn in thin air. 
The mandate for 'flexibility in the adjudication ofNIW cases' . · .. must be construed 
liberally rather than strictly compared to the New York State Department of 
Transportation case. USCIS is now required by United States Congress through the 
No Child Left Behind Act of 2001 ... to make it "flexible["] and thus possible rather 
than impossible in favor of the 'Best Interest of the School Children,' ·by granting 
waivers to 'Highly Qualified Teachers' who have already been serving the cause 
instead of requiring labor certification which may only reveal uncommitted U.S. 
workers with minimum education qualification. 
The petitioner has not submitted evidence to establish that his accomplishments are "incomparable" 
as counsel 
claims. 
After protesting that the director's decision is, in counsel's words, "drawn in thin air," counsel 
asserts that the NCLBA did not merely imply that USCIS should grant the waiver to "highly 
qualified teachers, " it "required" USCIS to do so. The text of the statute does not mention 
immigrant teachers, labor certification, the national interest waiver, or the phrase "national interest." 
The NCLBA does not establish 
or imply a blanket waiver for teachers. 
Counsel contends "the Director is requiring more from the beneficiary's credentials tantamount to 
having exceptional ability," even though one need not qualify as an alien of exceptional ability in 
order to receive the waiver. It is evident from the statute that the threshold for exceptional ability is 
below, not above, the threshold for the national interest waiver; it is possible to establish exceptional 
ability but still not qualify for the waiver. Also, the director did not require the petitioner to establish 
exceptional ability in his field. Instead, the director found that the petitioner 's evidence failed to 
establish that his work has had an influence beyond the school districts where he has worked. 
Counsel cited a report indicating that the Teach for America program has produced disappointing 
results. This assertion would be relevant if the only two available options were to continue relying 
on the flawed Teach for America program, or to grant the national interest waiver, but this is not the 
case. In repeatedly citing the NCLBA in support of the waiver claim, counsel did not cite any 
evidence to show that the NCLBA had produced better results than Teach for America. More 
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importantly, the purpose of the present proceeding is not to compare the merits of Teach for America 
and the NCLBA, but rather to determine whether the petitioner qualifies for an immigration benefit. 
Counsel cites a 2010 Department of Education report, ESEA Blueprint for Reform. Counsel states: 
The U.S. Department of Education's finding that meeting the NCLB Act's 
requirements for the "highly qualified" standard "does not predict or ensure that a 
teacher will be successful at increasing student learning" because while the NCLB 
requirements set minimum standards for entry into teaching of core academic 
subjects, they have not driven strong improvements in what matters most: the 
effectiveness of teachers in raising student achievement which demonstrates that 
teacher effectiveness contributes more to improving student academic outcomes than 
any other school characteristic. 
The finding that "the NCLB requirements ... have not driven strong improvements in ... the 
effectiveness of teachers in raising student achievement" appears to undermine the claim that the 
NCLBA has set the standard for the national interest with respect to education. 
Counsel quotes President Obama: "I'm committed to moving our country from the middle to the top 
of the pack in science and math education over the next decade." Counsel contends that the 
president has thus "effectively set the critical timeline within which to meet [this] goal. ... the Chief 
Executive of the country bas himself determined that the national interest would not be served if the 
petitioner was required to obtain a labor certificate [sic] for the proposed employment." Counsel has 
not established that granting the waiver to the petitioner would make the difference in meeting "the 
critical timeline." While the president's remarks represent one of the current administration's policy 
goals, those words do not supersede standing legislation, regulations and case law. 
Counsel asserts that, by hiring teachers who meet the NCLBA's definition of "highly qualified," 
schools will preserve federal funding opportunities that rely on compliance with the NCLBA. This 
assertion has no weight unless the petitioner is the only "highly qualified teacher" available to his 
intending employer, a claim that the petitioner has not supported with any evidence. Even then, the 
petitioner has not shown that his employment as a teacher, "highly qualified" or otherwise, would 
have a national impact rather than a local one. 
Section 9101(23) of the NCLBA defines the term "highly qualified teacher." By the statutory 
definition, a "highly qualified" school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least 
a bachelor's degree; and 
• demonstrates competence in the academic subjects he or she teaches. 
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Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if 
he or she has "had certification or licensure requirements waived on an emergency, temporary, or 
provisional basis." Counsel does not explain how the above requirements are incompatible with the 
existing labor certification process. The minimum degree requirement, which counsel has 
emphasized, is the same for labor certification as it is for a highly qualified teacher (i.e., a bachelor's 
degree). Therefore, counsel has not established that the labor certification process would result in 
the hiring of teachers who did not meet the "highly qualified" standards. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that the petitioner's influence be national in 
scope. NYSDOT at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit 
to the field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
exempt professionals from the requirement of a job offer. Congress has not established any blanket 
waiver for teachers. 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 statutory job offer requirement will be in the national interest of the United States. 
The AAO will dismiss the appeal for the above stated 
reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.