dismissed EB-2 NIW Case: Mathematics Education

(b)(6)
DATE: 
INRE: 
PETITION: 
MAR 1 8 2013 
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 
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 fmd 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.F.R. § 103.5. Do not. file any motion 
directly with the AAO. Please be aware that 8 C.F.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 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The Director, Texas Service Center, deriied 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 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 a mathematics teacher with 
At the time he filed the petition, the petitioner chaired the 1 
He is now on the faculty of l 
l'he 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 appea~ the petitioner subniits a brief from counsel and supporting exhibits. 
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, IOlst Cong., 1st Sess., II (1989). 
(b)(6)
Page 3 
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 (NYSD01), 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 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 USCIS regulation at 8 C.P.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 January 13, 2012. In an introductory statement, 
counsel stated: 
[The petitioner's] petition for waiver of the labor certification is premised on his 
Masters Degree in Mathematics with some solid Doctorate credit obtained, over 
seventeen (17) years of dedicated and progressive teaching experience 
exclusively in Mathematics ••• , the major awards and recognitions received by 
him, and most especially the contribution in Mathematics education whic.h he 
selflessly shares [with] everyone on his website .•. , students and Mathematics 
teachers alike. 
(b)(6)
Page4 
In 2007, [the petitioner] was instrumental in raising dramatically the scores and 
proficiency of his students in the On top of 
these, he has been serving as webmaster and administrator of his school's well 
improved website .... He also authored articles in professional journals. 
Among his distinctions as a Mathematics teachers [sic], [the petitioner] was the 
(Counsel's emphasis.) Counsel also noted that the petitioner was a graduate student's master's 
thesis advisor, and served on the thesis defense committee of another student. These events, 
however, took place while the petitioner was on the faculty of in the 
, and such duties appear to be expected ofuniversity faculty. There is no evidence that 
the petitioner will return to similar employment in the United States. 
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). Therefore, it is necessary to examine the 
evidence the petitioner submitted in support of the above claims. 
The petitioner submitted printouts and CD-ROMs of content from his personal web site, which he 
called a ''public service to make math education accessible to everyone." The materials establish 
the existence of the site, but they do not establish the extent, if any, to which others rely on the site. 
The petitioner did not, for example, submit statistics to show how many unique visitors the site 
receives in a given month or year, or materials showing that established third-party educational web 
sites have recommended or linked to the petitioner's site. Because ofthe nature ofthe internet and 
the world wide web, virtually any web site has the potential to reach a national or international 
audience, but no one site offers national benefit simply by existing and being available for use. The 
absence of evidence of widespread use of the petitioner's site is, therefore, a significant omission. 
Regarding counsel's claims of "major awards and recognitions," the USCIS regulation at 8 C.P.R. 
§ 204.5(k)(3)(ii)(F) states that "evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations" can form part of a claim of exceptional ability. Exceptional ability, in tum, does not 
guarantee the waiver, because the statute -clearly subjects aliens of exceptional ability to the job 
offer requirement. Therefore, the very existence of "awards and recognitions" does not necessarily 
imply eligibility for the waiver. By characterizing the "awards and recognitions" as "major," 
counsel effectively claimed that these particular awards are especially significant and therefore 
merit special consideration. The evidence submitted, however, does not stand up to that 
assessment. 
The two earliest awards, a "Scholastic Achievement Award" and a certificate from an "Essay 
Writing Contest," both date from early 1990 when the petitioner was 16 years old and had not yet 
begun his college education. The petitioner was not yet qualified to engage in any profession, and 
these awards are not evidence of eligibility for the national interest waiver. 
(b)(6)
Page5 
A copy of a June 27, 1999 certificate reads, in part: 
HIGHEST LEADERSHIP AWARD 
Know all men by these presents that" [the petitioner] has been chosen by the . 
of this institution of 
£ ~- , in the City of 
Naga, Republic of the Philippines. 
The certificate did not identify ''this _ ," and the petitioner 
provided no 
other information about the award. The award does not specifically mention teaching, and therefore 
the petitioner has not shown its relevance to the proceeding at hand. 
A printed, undated page lists the order of events at an unidentified ceremony. The petitioner is one 
of four individuals named under "Awarding Number and acceptance spech [sic] of the Awardees." 
The document does not specify whether the petitioner and the others were, themselves, the 
awardees, or the presenters of the awards. Furthermore, the document does not identify the awards, 
and there is no evident indication that the awards are necessarily education-related. 
The remaining certificates relate to math teaching. but the petitioner has not shown that any ofthem 
are "major awards [or] recognitions." awarded the 
petitioner a "Certificate of Recognition ... for having won Third Place in 3rd level competition in 
the 
A certificate from the 
(the certificate does not specify whether the 
department was loca~ regional or national) acknowledged that the petitioner was ''the trainor [sic] of 
the team that won 1st Place in the Region 5 Division Team Finals for 4th Year in ' __ 
An Au~t 2007 "Certificate of Excellence ... acknowledges that [the petitioner] of 
has been awarded this certificate for Making Outstanding Gains on the 2007 
Math MSA." The lone signature on the certificate belongs to the "Principa~" indicating that the 
certificate is from the school named on the certificate. The certificate indicates that the petitioner's 
students improved their scores on the but that does not make the 
certificate a "major award." All of the . certificates that mention mathematics indicate that the 
petitioner has been an effective teacher or coach of students directly in his charge, but they do not 
show that the petitioner has had a broader impact on math instruction either in the Philippines or in 
the United States. 
Other certificates, in a separate section of the record, attest to the petitioner's education and 
experience, but do not self-evidently distinguish him from other math teachers to an extent that 
would warrant the special immigration benefit ofthe national interest waiver. 
(b)(6)
Page6 
Letters and evaluations from the petitioner;s students show that they hold him in high regard, and an 
October 2005 recommendation letter from one of the petitioner's former professors (in a subject 
other than mathematics) attests to his personal character. 
Counsel had stated that the petitioner had "authored articles in professional journals." Publication 
of scholarly work is a means of disseminating one's findings, and thereby can confer benefits that 
are national in scope, provided that the publications carrying the articles see national distribution. 
The petitioner, however, did not show such distribution for the journals that carried his papers. 
Rather, the journals appear to be internal publications. The masthead ,_ 
describes the journal as the "Offidal Publication where 
the petitioner worked at the time of publication. His contribution to that journal consisted of the 
abstract of his master's thesis. Several other papers appeared in j described 
as 
.1. "' - "' -
L '' Those papers are all statistical analyses of student performance and demographics, matters 
of internal interest to instructors at the university. By design, the internal publications in the record 
are of very limited circulation. The petitioner did not submit examples of anything that could 
justify the term "articles in professional journals." 
·· Alongsid.e the above internal publications, the petitioner submitted examples of his work as the 
webmaster for Screenshots reproduced in the record include photographs from 
various school events~ The petitioner also designed web pages for the school's sports program, its 
As noted 
previously, web presence does not necessarily or inevitably lead to influence on a national scale, 
and the petitioner submitted no evidence to show greater impact from his web design work. 
The director issued a request for evidence on June 25, 2012, instructing the petitioner to "submit 
evidence to establish that [his] past record justifies projections of future benefit to the nation" 
(director's emphasis), and that the petitioner has "a past record of specific prior achievement with 
some degree of influence on the field as a whole." 
In response, counsel listed many ofthe petitioner's prior evidentiary submissions, and states that the 
"above awards and recognitions are difficult to ignore as solid evidence of [the petitioner's] 
competency to influence the improvement of Mathematics Education in the United States of 
America." Counsel did not elaborate further. ·The listed exhibits included materials, such as the 
petitioner's 1990 essay contest award, that have no demonstrated relationship to math education at 
all. None of the submitted exhibits establish that the petitioner has, so far, "influence[d] the 
improvement of Mathematics Education in the United States of America" except at the most local 
level at a handful of schools in _ Even then, the record does not show that claimed 
improvements at schools where the petitioner used to work (such as 
. have continued following the petitioner's departure from those schools. This is an 
important factor because, if the petitioner's influence is limited to those students whom he 
personally teaches, then he cannot satisfy the "national scope" prong of the NYSDOT national 
interest test. 
(b)(6)Page7 
Counsel stated: "today's 
United States workers or Mathematics Teachers are not as competitive as 
the foreign teachers who are already in the country since not all ofthem were educated by 'Highly 
Qualified Teachers."' This assertion relies on the presumption that all "foreign teachers" ''were 
educated by Highly Qualified Teachers." Counsel cited no evidence to support that claim, and, as 
stated earlier, coun.Sel's unsupported claims have no weight as evidence. Furthermore, counsel 
essentially contended that "foreign teachers," as a class, are eligible for a blanket waiver of the job 
offer requirement. As members of the professions, teachers are included in the statutory clause at 
section 203(b)(2)(A) that includes the job offer requirement. 
Rather than discuss the petitioner's merits in any detail, counsel begins from the assumption that the 
petitioner is a "Highly Qualified Teacher" and that the labor certification process is inherently ill­
suited for such individuals. The same statutory clause cited above also subjects aliens of 
exceptional ability to the job offer requirement (including labor certification). Therefore, there can 
be no argument that exceptional ability as a teacher should presumptively qualify any given alien, 
or "foreign teachers" as a class, for the national interest waiver. 
Counsel asserted, at length, that there is a crisis in teaching science, technology, engineering and 
mathematics (STEM) in the United States, and that "Highly Qualified Teachers" address this urgent 
need. Counsel did not establish the effect that the petitioner has had on this issue in the several 
years that he has already been teaching in the United States. 
Counsel stated that another self-petitioning teacher received a national interest waiver, and asked 
that the present petition ''be treated in the same light." While 8 C.P.R. § 103.3(c) provides that 
AAO precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions by the AAO or by Service Centers are not similarly binding. Furthermore, 
counsel has furnished no evidence to establish that the facts of the instant petition are similar to 
those in the unpublished decision. Without such evidence, the assertion that both cases merit the 
same outcome is unwarranted. 
The petitioner submitted copies of previously submitted documents, as well as background 
materials regarding STEM education. The petitioner also submitted new certificates an(] witness 
letters, reflecting the petitioner's most recent efforts in the United States. The petitioner asserted 
that these materials establish his influence on the field of mathematics teaching. The submitted 
materials are broadly similar to the exhibits submitted previously, showing that the petitioner has 
performed his work successfully and earned the respect of fellow teachers and administrators, but 
falling well short of demonstrating any significant impact beyond the schools and districts where he 
has worked. 
The director denied the petition on November 8, 2012, stating that the petitioner had failed to meet 
the NYSDOT guidelines to show eligibility for the waiver. On appeal, counsel notes that Congress 
passed the No Child Left Behind Act three years after the issuance of NYSDOT as a precedent 
decision, and that therefore "[t]here is no longer vagueness or obscurity'' on the question of whether 
"highly qualified teachers" serve the national interest. Counse~ however, identifies no special 
legislative or regulatory provisions that exempt school teachers from NYSDOT or reduce its impact 
o·n them. 
(b)(6)Page 8 
The assertion that the No Child Left Behind Act is tantamount to a retraction or modification of 
NYSDOT is not persuasive; that legislation did not amend section 203(b )(2) of the Act. In contrast, 
section 5 ofthe Nursing Relief for Disadvantaged Areas Act of1999, Pub.L. 106-95 (November 12, 
1999), specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) 
to create special waiver provisions for certain physicians. Because Congress not only can amend 
the Act to clarify the waiver provisions, 'but has in fact done so in direct response to NYSDOT, 
counsel has not made a persuasive claim that the No Child Left Behind Act indirectly implies a 
similar legislative change. 
Turning to immigration legislation, counsel states: 
With respect to the E21 visa classification, INA § 203(b)(2)(A) provides in relevant 
part that: "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 ..• educational interests, . .. of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States." 
(Counsel's emphasis.) Counsel, above, highlighted the phrase "national educational interests," but 
the very same quoted passage also includes the job offer requirement, i.e., the requirement that the 
alien's "services ... are sought by an employer in the United States." Counsel has, thus, directly 
quoted the section of relevant law that supports the director's conclusion. By the plain wording of 
the statute that counsel quotes on appeal, an alien professional holding an advanced degree is 
presumptively subject to the job offer requirement, even if that alien ''will substantially benefit 
prospectively the national ... educational interests ... of the United States." Neither the 
Immigration and Nationality Act nor the No Child Left Behind Act, separately or in combination, 
create or imply any blanket waiver for teachers, and any attempt to fashion such a waiver out of the 
wording ofthe statutes must therefore fail. 
Counsel asserted that the director "erred in disregarding evidence demonstrating the national scope 
ofpetitioner's proposed benefit through her [sic] effective role in serving the national educational 
interest of closing the achievement gap." Closing that gap is a national goal, but it does not follow 
that the petitioner's efforts toward that goal are, themselves, national in scope. Counsel did not 
show that the petitioner's individual work significantly "clos[ed] the achievement gap" at a national 
level, rather than locally in one district, one school, or one classroom. 
Regarding the "achievement gap," counsel provides statistics from 
The petitioner used to work for that district, but left several years before filing 
the petition and has voiced no intention of returning. Counsel does not explain why this 
information is relevant to the petitioner's waiver claim. The AAO notes that, according to the 
statistics cited by counsel, '' ranked near the bottom" at all assessed grade levels in 2012. 
This data does not suggest that the petitioner's teaching efforts for before 2012 had an 
appreciable lasting effect. Counsel does not explain how the petitioner's future work will "clos[e] 
the achievement gap" when there is no evidence that his past work has done so. 
(b)(6)
0 
. . 
In the section of the brief regarding • counsel repeatedly refers to the male petitioner with 
feminine pronouns, and states erroneously that he teaches "Reading, Science and math for children 
with special needs." -
Counsel denounces the labor certification process as ''tedious," but the national interest waiver is 
not merely a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. NYSDOT, 22 I&N Dec. 223. 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
Congress ~ not established any blanket waiver for teachers. Eligibility for the waiver rests not on the 
basis of the overall importance of a given profession,· but rather 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. 
ORDER: The appeal is dismissed.