dismissed EB-2 NIW Case: Mathematics Education

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DATE: JAN 2 3 2013 OFFICE: TEXAS SERVICE CENTER . 
INRE: Petitioner: 
Beneficiary: 
U$. DepartmenfofHomeliind 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 
FTT .F· 
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.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, 
f RonRose er 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Cent~r, 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 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 for _ _ 
, , 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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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 lrl¥nigration 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. Con'un'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 seeking the waiver 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 rllinimum 
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 th~ 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 
I 
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 February 9, 2012. USCIS records show that 
had filed a petition on the alien's behalf, with an appro~ed labor certification, on June 29, 2010. 
Counsel acknowledged this earlier filing, and attributed its denial to "the unfortunate incident that 
happened to _ _ ." Counsel did not elaborate as to the nature of 
"the unfortunate incident," but it is a matter of public record that USCIS invoked the debarment 
provisions of section 212(n)(2)(C)(i) of the Act against o~ing to certain immigration 
violations by that employer. As a result, between March 16, 2012 to ·March 15, 2014, USCIS will 
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not approve any employment-based immigrant or nonimmigrant petitions filed by This 
debarment means that is, temporarily, unable to file its own petition on the alien's behalf, 
and thus explains why labor certification is not an option in the short terin. 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 alien will serve the national interest to a 
substantially greater degree than do others in the same field. NYSDOT, 22 I&N Dec. at 218 n.5. 
The petitioner signed a "Personal Statement" that referred to her in the third person. Following a 
description of the petitioner's educational background and employment history, the statement reads: 
She was. hired by to teach 
in 
She managed to handle 
different subjects in Matheml!tics from Grades 9-12 
and also made provision . in lessons for differentiation of instruction for special 
learning needs, gifted and talented, English Language Learn~rs and culturally and 
religiously diverse student population at the same time exposing them to different 
modalities of learning that would support their developmental needs and progress. 
[The petitioner] will continue to awaken the never ending curiosity of students to seek 
for knowledge and be open-minded for more challenges. 
She provided academic support program [sic] for struggling students outside school 
hours like Extended Learning Opportunities (ELO), and After-School tutoring. She 
also assisted students for boot camp in finishing their project to qualify them for 
graduation. [The petitioner's] ·passion and tireless diligence in giving meaningful 
education to students paid off. Evidence showed that scores in the improved 
tremendously with incre.asing level of proficiency as advanced and proficient. 
. . 
The petitioner submitted copies of several "Certificate[s] of Appreciation," mostly from employers, 
citing her performance in raising students' test scores, judging contest~, volunteering, and generally 
for superior performance as a teacher. The petitioner submitted no background evidence about these 
certificates to show that they meaningfully distinguish her from others in her field . 
Several witness letters accompanied the petition, all from individuals who have worked with the 
petitioner in some capacity. ·Most of the witnesses are on the staff of _ 
Maryland, where the petitioner began teaching in 2007. Two witnesses are the petitioner's students 
at and another works at the and where the petitioner 
"assisted in scoring student projects for the Academic Validation Program." The only witness not 
affiliated with PGCPS worked with the petitioner at ......__ __ 
These witnesses praised the petitioner's skills and dedication as a· teacher, but did not claim or 
explain how the benefit from the petitioner's work would extend beyond her own classroom. 
1 The list of debarred employers is available online at http://www.doJ:gov/whd!immigration!HIBDebarment.htm 
(printout added to record January 9, 2013). · 
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The director issued a request for evidence on April 4, 2012, instructing the petitioner to explain how 
her "employment with a high school in 
Maryland is a benefit to the nation," and to show that her 
"past record justifies projections of a future benefit to the nation." The director noted the 
I 
petitioner's submission ofnumerous certificates, but found that the petitioner had submitted nothing 
to show their significance. 
In response to the notice, the petitioner submitted background materials about the need to improve 
mathematics education. These materials demonstrate the substantial intrinsic merit of math 
education, but not that the benefit from one teacher's efforts is nationai in scope. Counsel pointed to 
federal legislation and other national-level efforts relating to education, but local work in pursuit of a 
national goal does not necessarily yield a benefit that is, itself, national in scope. Counsel did not 
explain how the petitioner's work would, by itself (rather than as one small part of a much larger 
effort) benefit the United States as a whole, nor did counsel identify any prior achievement by the 
petitioner that yielded national benefits. The collective, abstract benefits of math education do not 
imply that the petitioner, as a math teacher, presumptively qualifies for the waiver. 
The petitioner submitted copies of newspaper articles, some of which the petitioner wrote, while 
others featured her as a subject. The clippings do not identify the newspapers, which appear to be 
internal school publications. These articles show that student test scores improved at schools where 
she was a teacher or administrator, but they do not demonstrate that the petitioner initiated 
improvements or reforms that have had, or are having, national-level results. 
On August 29, 2012, the director denied the petition, stating that the petitioner had not established a 
past record of achievement and influence that would justify the special benefit of the national 
. interest waiver. On appeal, counsel asserts that the petitioner's "request for the waiver of the labor 
certification is premised on her Master's degree in Teaching Mathematics. She also has more than 
27 years of progressive work experience." These factors affect eligibility for the underlying 
immigrant classification, but not for a waiver of the job offer requirement that, by statute, is an 
integral part of that classification . 
The director, in the request for evidence, had informed the petitioner that additional evidence was 
necessary in order to establish the significance of the various certificates that the petitioner had 
submitted. Counsel, on appeal, protests: "the Immigration Service is requiring more from the 
beneficiary's credentials and tantamount to having exceptional ability," even though one need not 
qualify as an alien of exceptional ability in order to receive the waiver. It remains that the 
petitioner's certificates do not facially establish eligibility for the national interest waiver. Counsel 
clearly considers these certificates to be significant, listing them agairt on ,appeal, while at the same 
time protesting that the petitioner need not explain how the certificates are significant. The director 
did not require the petitioner to establish exceptional ability in her field. Instead, the director made 
the reasonable request for the petitioner to show how the numerous certificates in the record serve to 
establish eligibility for the waiver. The petitioner failed to address that request, and counsel cannot 
mitigate that failure by claiming that the director went "over-board" by making the request in the 
first place. 
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Counsel states that the petitioner's positive impact on her students, ''who are future U.S. workers and 
thus equally protected by labor certification process," warrants waiving that process in 
her own case. 
Counsel observes that the petitioner has documented "the adverse effect of declining quality of 
education in Math and Science in the United States." The petitioner had not, however, established 
the role she has played in 
reversing that trend on a national level. Counsel states: 
[T]he most tangible national benefit to be derived from a 'Highly Qualified 
Mathematics Teacher' is recreating a society of responsible and valued-driven 
citizens including a highly productive and well-balanced work force that would 
translate the current recession adversely affecting the United States of America into a 
formidable economy again including national security. 
Counsel fails to explain how the actions of one mathematics teacher would contribute significantly 
to nationwide social reform and economic recovery. 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). General assertions about the overall importance of education, and the need for education reform, 
do not exempt every teacher from the job offer requirement. As members of the professions (as defined 
in section 101(a)(32) of the Act), teachers are subject to the job offer/labor certification requirement set 
forth in sections 203(b)(2)(A) and (3)(C) of the Act. Likewise, aliens of exceptional ability who ''will 
substantially benefit prospectively ... the United States" are also subject to the job offer provision of 
section 203(b)(2)(A) of the Act Congress created no blanket .waiver for math teachers. It is clear from 
the statute, therefore, that an alien who works in a beneficial profession such as teaching mathematics is 
not automatically or presumptively exempt from the job offer requirement. 
Colinsel denounces "the tedious process of labor certificate" (sic) and asserts that the minimum 
educational requirement for the petitioner's position is a bachelor's degree, and therefore the 
Department of Labor would likely deny an application for labor certification that required a higher 
degree. The record shows that did, in fact, obtain an approved labor certification for the 
~lien, which set the minimum education requirement at a master's degiee. The Department of Labor 
approved the labor certification on September 2, 2010, 65 days after its June 29, 2010 filing. Thus, 
documented facts contradict counsel's speculative assertions about what might result from the labor 
certification process. debarment prevented the approval of a petition based on that 
approved labor certification, but the record nevertheless proves that an employer seeking a labor 
certification for the alien not only can do so, but has done so. Counsel is aware of: 's earlier 
petition, having referred to it in previous correspondence, making counsel's new assertions all the 
more unsupportable. 
Counsel makes little effort to distinguish the petitioner from other qualified professionals in her field 
(apart from listing her certificates, as discussed above). Instead, counsel again appeals to the 
underlying merit of her occupation as a whole. Counsel asserts: "Exclusively and strictly enforcing 
the rudiments behind the New York State Department of Transportation Case to Highly Qualified 
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Teachers is unjust, unreasonable and damaging to ·the 'Best Intere:st' of the American School 
Children." Precedent decisions are binding on all USCIS employees in the administration of the 
Act. See 8 C.F.R. § 103.3(c). Counsel cites no statute, regulation or case law that would require or 
permit USC IS to · disregard NYSDOT as it applies to school teachers. · Counsel repeatedly refers to 
presidential speeches and· federal initiatives such as No Child Left Behind, stating that they 
demonstrate the "underlying urgency on this matter," but counsel identifies no special legislative or 
regulatory provisions that exempt schoql teachers from NYSDOT or reduce its impact on them. 
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 ofa 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. · 
ORDER: The appeal is dismissed.