dismissed EB-2 NIW Case: Mathematics Education

(b)(6)
DATE: 
MAY 1 5 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER FILE: 
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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific 
requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion directly with 
the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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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 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 at 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 and copies of printouts of standardized test data 
relating to in Maryland. 
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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Supplementary information to regulations implementing the Immigration Act of 1990, 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. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), 
has set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic 
merit. Next, the petitioner must show that the proposed benefit will be national in scope. Finally, the 
petitioner must establish that the alien will serve the national interest to a substantially greater degree than 
would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish that 
the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish 
prospective national benefit. The intention behind the term "prospective" is to require future contributions 
by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and 
whose benefit to the national interest would thus be entirely speculative. 
The AAO also notes that the 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 1-140 petition on January 24, 2012. In an accompanying statement, 
counsel stated: 
[The petitioner's] petition for waiver of the labor certification is premised on his Doctor 
of Science Degree in Mathematics, over sixteen (16) years of dedicated and progressive 
teaching experience exclusively in Mathematics . . . , the major awards and honors 
accorded him, and most especially the treatises and authorships which were published in 
educational books and professional journals in the United States of America, Japan and 
Germany. 
Academic degrees, experience and institutional recognition (such as awards) are all elements that can 
contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B) and (F), 
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respectively. Particularly significant awards may serve as evidence of the petitioner's impact and 
influence on his field, but the petitioner did not demonstrate that the awards he has received have more 
than local significance. Counsel listed 14 exhibits under the heading "Awards and Honors." A 
"Narrative Resume" submitted with the petition identifies what the petitioner appears to consider the 
most significant among those awards: 
He . 
. . received a Certificate of Accomplishment for attending Evening Seminars 
sponsored by the In June 2009, he also received a 
Recognition of Excellence certificate from Praxis for being in the top 15% of test takers. 
Finally, he received a Principal's Award for Excellence during the school year 2008-
2009. 
"Attending Evening Seminars" is a way to increase one's professional knowledge and improve as a 
teacher, but there is nothing inherent in this activity to establish eligibility for the waiver. An otherwise 
ineligible teacher could not qualify for the waiver merely by attending such seminars. 
An "ETS Recognition of Excellence" certificate acknowledged the petitioner's "outstanding score on 
The Praxis Series Mathematics: Content Knowledge ... that ranks within the top 15% of all test takers 
who took this assessment in previous years." The petitioner did not submit background documentation 
to establish the significance of this result. A high test score is not, on its face, an influential 
achievement in the field of education. Rather, it demonstrates a good grasp of subject knowledge. 
The phrase "Principal's Award for Excellence" appears on a pre-printed form from 
The certificate indicates that the petitioner received the award "For Completion of 
Second Year Teaching." 
Other certificates acknowledged participation in one-time events, such as judging math competitions, as 
well as the petitioner's efforts as a lecturer. These latter materials date from when the petitioner was on 
the faculty of The record does not indicate that the petitioner continues 
to perform similar activities in the United States. The petitioner's past duties on a university's faculty 
are not necessarily a reliable guide for what the petitioner will do in his current position as a high 
school teacher. 
The petitioner's "Narrative Resume" described his activities in Baltimore: 
As a teacher, [the petitioner] shares his ideas on how to improve student achievement 
with his colleagues and volunteers in after school activities by offering free tutorials and 
coach classes. He also constantly communicates with parents on their children's 
progress in school. He also volunteers in programs promoting the cultural exchange 
between the US and the Philippines through the in Maryland, 
As a professional, [the petitioner] participated and volunteered in 
various organizations .. 
. . He also participated in College Board sponsored seminars for Advance Placement and 
attended the Activate Workshop sponsored by the Computer Science Department of 
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He also acted as lecturer in math forums and judge in 
mathematical competitions. 
Under the heading "Research and Publications," the petitioner submitted copies of eight scholarly 
papers that the petitioner wrote between 1995 and 2003, while he was on the faculty of 
Exhibits in a section of the record headed "Talks as a Resource Speaker" date from 
the same period. The petitioner did not submit objective documentation (such as citation data) to show 
the impact of the petitioner's research papers. Furthermore, the papers do not concern mathematics 
education. Rather, they focus on advanced mathematical topics such as 
that appear to be well beyond high school-level math. 
There is no evidence that the petitioner continues to publish research. 
The petitioner submitted 12 witness letters from faculty, administrators, former students and parents of 
students at and other schools where the 
petitioner has taught. These letters praised the petitioner's abilities as an educator, but did not indicate 
that the petitioner's work has had, or will continue to have an impact outside of the classrooms and 
local school systems that have employed him. 
Two other letters incorporated into the record as "Testimonials" appear, instead, to be "form" letters 
sent to multiple recipients. One of these letters, undated and with no personalized salutation, appears to 
be a cover letter that accompanied the certificate the petitioner received for his Praxis test score. The 
other, dated May 3, 2011, is from _ _ _ The letter reflected 
on the 2010-2011 school year, and contained no specific information about the petitioner. The letter is 
addressed to the petitioner, but his name is visibly out of alignment with the salutation "Dear." This 
anomaly, together with the lack of personalized content, indicates that the mayor's office issued a 
"form" letter to multiple recipients within Baltimore's public school teachers. 
The director issued a request for evidence on June 5, 2012, stating that the submitted evidence failed "to 
establish that the petitioner's work as a Mathematics Teacher has had an impact 
on the field as a whole 
and that his teaching techniques are been [sic] used by other schools other than his employer's 
organization." 
Much of the petitioner's response to the request for evidence concerns the intrinsic merit of 
mathematics education, which does not distinguish the petitioner from others in the same field. Current 
law creates no blanket waiver for math teachers, and therefore general assertions about the value of the 
profession cannot establish eligibility for the waiver. 
Counsel stated: 
Since a 'National Mathematics Teacher' is not even a real concept but more of 
metaphysical cognition [sic], undersigned wishes to once again posit a realistic 
proposition upon which to establish that the self-petitioner's contributions will impart 
national-level benefits. 
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Page 6 
Even the curricula used by each state education department in the United States vary 
from each other. 
In other words, since not all NIW cases are based on prevailing Acts of United States 
Congress, it is but harmless to assert that if an NIW Petition is made with premise on 
some prevailing Acts of United States Congress, that by itself renders the proposed 
employment national in scope." 
Counsel contended that the No Child Left Behind Act (NCLBA) and other legislation and policy 
initiatives establish that Congress and the executive branch have put special emphasis on education, 
especially in math and related subject areas. This assertion does not succeed, because all employment­
based immigrant classifications are based on "Acts of United States Congress," as is the statutory job 
offer requirement. There is no basis to conclude that Congress, by mentioning a given occupation in a 
particular piece of legislation, exempted aliens in that occupation from the job offer requirement. 
Counsel contended that the petitioner's high level of expertise in his field makes him especially 
valuable to the United States. Copies of the petitioner's annual evaluations from 2009, 2010, 2011 and 
2012 show that his employers rated him "Satisfactory," the middle ranking between "Proficient" and 
"Unsatisfactory." The "Satisfactory" rating is clearly not an unfavorable one, but neither does it 
support 
counsel's claim that the petitioner strongly stands out among his peers. 
In his own accompanying statement, the petitioner stated: "As 
a math teacher, I am part in [sic] shaping 
the fabric of our society. I am in the frontline in guiding, directing, and molding America's future." 
These are general statements about teaching in general. Regarding his own individual qualifications, 
the petitioner stated: "As a teacher, I have contributed in sending many African Americans students 
[sic] residing in to various colleges and universities." The petitioner then cited general 
statistics that generally correlate prosperity to education. The petitioner submitted a copy of a report 
stating: 
Among the 4,017 graduates who received regular diplomas in the 
Schools Class of2008, 1,875 (or 46.7%) enrolled in college in the fall after graduation. 
Among the 4,286 graduates who received regular diplomas in the City Schools Class of 
2009, 2,035 (or 47.5%) enrolled in college in the fall after graduation. 
The petitioner submitted no evidence to show that he was especially responsible for the slight increase 
documented in the report. 
The petitioner observed that he holds a master's degree and a doctorate in mathematics, graduating 
Magna Cum Laude from Academic performance, measured by such 
criteria as grade point average, cannot alone satisfy the national interest threshold or assure substantial 
prospective national benefit. In all cases the petitioner must demonstrate specific prior achievements 
which establish the alien's ability to benefit the national interest. NYSDOT, 22 I&N Dec. 219, n.6. 
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Page 7 
The petitioner also stated: "Some individuals and schools are pursuing my research on Relative 
Difference Sets and use my research as a bibliographical reference." As an exam le the petitioner 
submitted the abstract from a 2010 master's thesis from The abstract 
reads, in part: 
Though 
the non-existence in the abelian p-groups was already established in the study of 
and in the metacyclic group through [the petitioner's] work, the result about 
the modular p-group is new. [The petitioner] attempted to prove the latter in his paper, 
but his proof is not valid because of a flaw in his computations. 
The thesis clearly refers to the petitioner's work, but it is equally evident that the reference is not a 
favorable one that reflects the petitioner's influence on mathematical research. 
The petitioner showed that citations to his work also appear in two other articles, both published in 
Designs, Codes and Cryptography - one in 2005, the other in 2006. One of the authors of the 2006 
article is who was the petitioner's collaborator and a co-author of the cited paper. 
The three documented citations - one a self-citation, and another an unfavorable one, do not 
demonstrate that the petitioner's published work has been particularly influential in the field. 
Furthermore, any influence from the petitioner's research work offers prospective benefit to the United 
States only if the petitioner is still performing such research. Referring to himself in the third person, 
the petitioner stated that he 
"still continues with his research on Difference Sets and Relative Difference 
Sets through collaboration with his advisor and others who are working in Combinatorics and Algebra." 
To support this claim, the petitioner cited "Collaborative 
Letters." The petitioner submitted printouts of 
four electronic mail messages. Two are dated 2000, and a third is dated 2002. The most recent 
communication is dated July 24, 2006, six years before the petitioner submitted it. A document of that 
age cannot establish that the petitioner "still continues with his r.esearch." Furthermore, the 2006 
message (from did not refer to any ongoing research. Rather, the petitioner's 
collaborator stated: "I am very glad to know that you have always been interested in difference sets and 
number theory. I hope I will have joint works again with you in the future." The record contains no 
evidence that any subsequent collaboration took place. This vague, six-year-old message does not 
support the 
assertion that the petitioner continues to perform research. 
The director denied the petition on November 30, 2012. The director listed several of the petitioner's 
evidentiary exhibits and quoted several witness letters, but found that the evidence did not show "how 
the benefits of his employment as a teacher in a Maryland school will be national in scope." The 
director also concluded that many of the petitioner's "assertions ... are unfounded." 
On ap~eal, the petitioner submitted Maryland School Assessment results for 
The petitioner does not claim to have taught in either of those jurisdictions. Counsel 
does not explain the relevance of these exhibits. Counsel's appellate brief contains numerous 
unexplained references to " 
Counsel's appellate brief includes a variation on the opening 
passage from the introductory statement 
that accompanied the initial submission: 
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Page 8 
[The petitioner] is a 'Highly Qualified Teacher' with a Doctor's Degree in Mathematics 
and over sixteen (16) years of dedicated, progressive teaching experience exclusively in 
Mathematics . . . , the major awards and recognitions received by him, and most 
especially the contribution in Mathematics education which he selflessly shares to [sic] 
everyone through numerous scholarly published materials from the United States, 
Germany, Japan, Australia and the Philippines. 
The record does not show that the petitioner has published anything on "Mathematics education"; his 
documented publications all concern a highly specialized area of mathematical theory. 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 notes that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and claims that "the United States Congress, with the enactment of the NCLB Act, 
has preempted the USCIS with respect to the parameters that should guide its determination" regarding 
the waiver claim. Counsel, however, identifies no special legislative or regulatory provisions that 
exempt school teachers from NYSDOT or reduce its impact on them. 
The assertion that the NCLBA modified or superseded NYSDOT is not persuasive; that legislation did 
not amend section 203(b )(2) of the Act. In contrast, section 5 of the Nursing Relief for Disadvantaged 
Areas Act of 1999, Pub.L. 106-95 (November 12, 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. Because Congress not only can amend the Actto clarify the waiver provisions, but 
has in fact done so in direct response to NYSDOT, counsel has not established that the NCLBA 
indirectly implies a similar legislative change. 
Counsel repeatedly mentions the petitioner's "numerous publications," claiming that they "were put to 
use and propagated in the United States of America, Germany, Japan and the Philippines." As 
discussed previously, the record establishes the publication of the petitioner's research work, but it does 
not establish that such work has had a significant impact on the field. Furthermore, there is no credible 
evidence that the petitioner continues to engage in published research; the most recent evidence he 
offered to support that claim was a six-year-old electronic mail message in which his collaborator 
expressed a general hope to work with the petitioner again in the future. 
Counsel cites a 20 I 0 Department of Education report, ESEA Blueprint for Reform, 1 and acknowledges: 
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 
1 The quoted portion is available online at http://www2.ed.gov/policy/elsec/leglblueprint/great-teachers-great-leaders.pdf 
(printout added to the record May 2, 2013). 
(b)(6)Page 9 
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 cited report contradicts and undermines counsel's assertion in the same brief that Congress 
superseded NYSDOT by defining the term "Highly Qualified Teacher" in the NCLBA, and that the 
petitioner should receive the waiver because he meets that definition. 
Counsel maintains that the petitioner's "proven success as [a] Mathematics Teacher" demonstrates his 
eligibility for the waiver. The record shows that the petitioner is competent and well-regarded by his 
peers and students, but it does not show that the petitioner has had, or likely will have, a significant 
impact outside of the school where he works at any given time. Counsel has not offered sufficient 
support for the contention that NYSDOT should not apply to experienced math teachers. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified 
to engage in a profession in the United States should be exempt from the requirement of a job offer based 
on national interest. Likewise, it does not appear to have been the intent of Congress to grant national 
interest waivers on the basis of the overall importance of a given profession, rather than on the merits of 
the individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest ofthe United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.