dismissed EB-2 NIW Case: Physical Education

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DATE: JUt 0 2 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts A ve., N.W. , MS 2090 
Washington , DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
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 (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 consideration, 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://www.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, 
·www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We 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 holclin an advanced de2:ree. he 
petitioner seeks employment as a physical education teacher at 
in part of 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 and copies of recent certificates she has received for her work 
and fulfillment of continuing education requirements. 
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 (IMMACT 90), 
Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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 Dep't 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. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. 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. !d. 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. !d. at 219. The 
petitioner's assurance that the alien will, in the futme, 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. !d. 
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 significant! y above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 2, 2012. An attorney 
cover letter submitted with the petition reads, in part: 
[The petitioner] is one of the most sought-after physical education teachers today. She 
has a Masters Degree in Physical Education, and a Bachelors Degree in the same field. 
She is also qualified to teach in four states: New York, New Mexico, Maryland and 
Arizona. Likewise, she is more than qualified to teach Special Physical Education to 
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handicapped students by virtue of her PRAXIS 1 and 2. Moreover , she has published a 
number of academic books about health and physical education. 
In a time in our country when youth obesity is a major cause for concern, [the 
petitioner 's] tireless devotion to physical education , not to mention her expertise , is a 
vital ingredient in the fight to curb our nation's ballooning waistlines and health dangers. 
For a teacher to convince her young pupils to love and embrace physical activities and 
sports in a world that has succumbed to video games, sugary foods and activities that 
promote idleness, it takes remarkable skills and incredible teaching methodology, which 
my client no doubt possesses. That's why the parents and community leaders of her 
current school in Arizona are practically begging to have her continue on as their 
children's Physical Education teacher. 
Indeed, [the petitioner] transformed the habits and lifestyles of her young students and 
have [sic] instilled in them the value of not only a sound mind but a healthy body. 
It is without question that our nation, which is struggling to combat childhood obesity, is 
in dire need of Physical Education experts like [the petitioner]. That's why it is 
considered by many that her vocation as a teacher is a matter of National Interest, hence 
this humble request for a waiver. 
If not for this waiver, a whole community will be deprived of her complete dedication to 
bring forth healthy Americans, who in just a short span of time, will become the leaders 
and citizens of this great country. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The unsupported 
assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988); Matt er of Laur eano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-San chez, 17 
I&N Dec. 503, 506 (BIA 1980). The petitioner has not submitted evidence to support the claim that she 
"is one of the most sought -after physical education teachers today," and she has not demonstrated that 
she, as an individual, has had a significant effect on childhood obesity rates in the United States since 
she began teaching in the United States in 2005. 
In her own statement, the petitioner stated: 
I came here as an H1B worker. The Human Resource officer from 
recruited me from the Philippines and offered me a job . I taught there 
for t ee years and moved to in Maryland .. .. I was qualified 
and recommended for Permanent Residency processing based on my performance and 
evaluation . .. but due to violation of 
HlB program, the Department of Labor debarred them from sponsonng, renewing , and 
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filing [immigrant and nonimmigrant visa petitions]. ... This is the reason why my 
Permanent Residency is not filed in a timely manner. For this reason, I am requesting 
your kind heart to please approve my application for a National Interest Waiver. That 
way, I can serve my students in 
The debarment of (which expired on March 15, 2014) explains why was unable to 
pursue labor certificatiOn and a petition in 2011, but it had no effect on any other employer, such as 
Furthermore, the statutory threshold for the waiver is the 
national interest. The petitioner must therefore satisfy the NYSDOT guidelines. 
The petitioner submitted copies of several documents under the heading "Certificates of Recognition & 
Appreciation I Awards I Commendation ." The cover letter submitted with the petition identified one of 
these awards as a ' Review of the 
record does not reveal this document. The description of the document, however, indicates that the 
award went not to the petitioner, but to where the petitioner 
formerly worked. Apart from the lack of documentation of the award itself, the record contains nothing 
from the awarding entity to state that the school received the award in large part because of its physical 
education program. The petitioner does not claim that any of her other employer s received recognition 
at the bronze level or higher. 
Two of the certificates recognized the petitioner as "Educator of the Month" at 
Middle School for February 2010. Other documents include "Certificates of Appreciation " for 
activities such as judging a 2004 dance competition and delivering a 2003 lecture on "Adapted P.E. and 
Sports for Special Children," as well as materials showing that the petitioner participated in various 
training exercises and workshops. 
More recent documents show that the petitioner has coached various sports at and helped the 
school to obtain $20,000 in grant funding. These materials establish the role that the petitioner has 
played at but they do not demonstrate the petitioner's impact or influence on her field beyond 
the local level. 
The petitioner submitted copies of favorable performance evaluations from some of the schools where 
she has worked. Witness letters, mostly from teachers, administrators, students, and parents, praised the 
petitioner's character and work ethic, but did not show how the petitioner's work has had, and will 
continue to have, an influence on her field as a whole, such that a waiver of the job offer requirement 
would be in the national interest. Because, by statute, exceptional ability is not sufficient grounds for 
the national interest waiver, the petitioner cannot establish that she qualifies for the waiver by showing 
that her colleagues consider her to be a very good teacher. 
Under the heading "Publication, " the petitioner submitted a copy of 
The initials stand for the 
in the hilippines, w ere the petitioner earned her two degrees. ommems m me text 
indicate that the petitioner adapted the article from her master's thesis . The record does not identify the 
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publication in which this paper appeared, and therefore it is not evident that the paper was distributed 
outside of the teacher training college where the petitioner wrote the paper. 
The one submitted article does not support the claim that she "has published a number of academic 
books about health and physical education ." The petitioner did not identify the books, submit any 
evidence of their existence and publication, or establish that she will continue to produce similar 
materials in the future. Conducting and publishing original research while in graduate school does not 
imply that one will continue to conduct and publish research. 
The director issued a request for evidence on January 24, 2013. The director acknowledged the 
substantial intrinsic merit of the petitioner's occupation, but instructed the petitioner to submit 
documentation to meet the other two prongs of the NYSDOT national interest test. 
The petitioner's response included a legal statement that reads, in part: "With the strict implementation 
of In the Matter of New York Department of Transportation, the Immigration Service has determined 
National Interest Waiver self petitioner-teachers' evidences as insufficient and accordingly denied the 
applications." The response also included the assertion that the director "has discretion to enforce said 
precedent," i.e. NYSDOT. Following published precedent decisions is not a matter of discretion. 
Rather, such decisions are binding on all USCIS employees. See 8 C.F.R. § 103.3(c). 
The statement continued: 
[USCIS] has legal and factual bases to approve teachers' National Interest Waiver 
applications without offending the principles enunciated in the Matter of New York 
Department of Transportation . ... 
Firstly, Immigration Act of 1990 (IMMACT 90) which enacted ... the 'National 
Interest Waiver[ '] included 'educators' as among the targets of this legislation, [and] 
specifically stated- '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.' 
As acknowledged elsewhere in the statement, the quoted language comes not from the statute itself, but 
from comments made by then-President George H.W. Bush as he signed the legislation. IMMACT 90 
did in fact create the national interest waiver, and the president mentioned "educators" in his remarks, 
but it does not follow that a blanket waiver for educators was either the intent or the result of the 
legislation. The same statute plainly subjected professionals - including "scientists and engineers and 
educators" -to the job offer requirement. IMMACT 90 promotes the immigration of educators, but the 
default mechanism for doing so is the job offer requirement and labor certification process, not the 
national interest waiver. 
The response statement contended that the NYSDOT decision provided no specific definition of the 
"national interest," and that Congress filled this void with the passage of the No Child Left Behind Act 
of 2001 (NCLBA), Pub. L. 107-110, 115 Stat. 1425 (Jan. 8, 2002): 
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Congress has in effect remarkably engraved the missing definition upon the concept of 
'in the national interest,' centered on the 'Best Interest of American School Children.' 
More importantly, U.S. Congress also provided the means to achieve this now defined 
'in the national interest,' i.e., 'Hiring and Retaining Highly Qualified Teachers.' 
Interestingly, "NCLB Act" also specified the 'Standard of a Highly Qualified Teacher.' . 
With this, the Service now has a definite working tool in defining what is 'in the national 
interest' including the clear standard on what qualifications must be required from NIW 
[national interest waiver] teacher self-petitioners, as mandated by No Child Left Behind 
Act of2001. 
None of the phrases presented in quotation marks are actually quotations from the text of the NCLBA. 
The term "best interest," with respect to children, appears only in provisions relating to homeless 
students. The NCLBA contains no mention of the national interest waiver or any immigration benefits 
for foreign teachers, and it did not amend section 203(b)(2)(B) of the Act (which created the waiver). 
With respect to the above claims regarding legislative intent, 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). Here, the petitioner has not established that Congress intended 
to exempt teachers from the job offer requirement, either through section 203(b )(2) of the Act, the 
NCLBA, or any other federal legislation. Congress's only direct statement on the matter has been to 
apply, not waive, the requirement. There is no support for the claim that the NCLBA amounts to 
Congress's definitive statement on waiving the job offer requirement for "highly qualified teachers." 
The NCLBA did not amend section 203(b )(2) of the Act or otherwise mention the national interest 
waiver. 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 Act to clarify the waiver provisions, but has in fact done so in direct 
response to NYSDOT, the petitioner has not established that the NCLBA indirectly implies a similar 
legislative change. Section 203(b )(2)(A) of the Act remains in effect, and therefore teachers, "highly 
qualified" or otherwise, remain subject to the job offer requirement. 
"Highly Qualified Teachers," as a class, play a significant collective role in implementing the provisions 
of the NCLBA. It does not follow, however, that every such teacher individually qualifies for special 
immigration benefits as a result, or that collective benefit justifies a blanket waiver for every such 
teacher, when the waiver otherwise rests on the specific merits of individual intending immigrants. 
The petitioner's response cited a recent emphasis on science, technology, engineering and mathematics 
(STEM) education, and stated: "As a Physical Education teacher, [the petitioner] ably prepares the 
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American students' 'healthy mind in a healthy body' for them to adequately achieve the end result of 
said educational programs." The petitioner submitted no evidence that her work as a physical education 
teacher has consistently improved her students' grades in academic subjects. 
The response statement included the claim that "[t]he demand for 'Highly Qualified ' teachers has 
escalated in the last few years." The petitioner did not show that the demands of the NCLBA are 
incompatible with the requirements to obtain labor certification for teachers. Furthermore , the 
petitioner did not establish that the actions of any one teacher have had, or will have, a nationally 
significant impact on the overall quality of education in the United States. 
While the majority of the response statement consisted of variations on the claim that the NCLBA 
indirectly exempts highly qualified teachers from the job offer requirement, the statement did address 
the petitioner's qualifications, repeating the list of awards claimed in the initial submission. The 
petitioner did not elaborate or establish the significance of the awards. 
The director denied the petition on August 27, 2013, stating that the petitioner "failed to establish that 
the proposed benefit will be national in scope." The director acknowledged the award certificates that 
the petitioner had submitted, but noted: "recognition of achievements and significant contributions to 
the field relate to the criteria for classification as an alien of exceptional ability at 8 C.F.R. § 
204.5(k)(3)(ii)(F), a classification that normally requires an approved labor certification." The director 
added that some of the materials that the petitioner had claimed as awards were actually certificates 
showing completion of training courses. The director stated that the NCLBA and related federal 
education initiatives did not create a blanket waiver for highly qualified teachers, and that general 
claims about the state of education in the United States cannot suffice to give national scope to the 
efforts of one teacher. 
On appeal, the petitioner's appellate brief repeats the claim that Congress passed the NCLBA with the 
intention of creating a blanket waiver for highly qualified teachers, even though that statute did not 
amend the Immigration and Nationality Act or mention the waiver specifically, or immigration 
provisions in general. The brief alleged that USCIS took the NCLBA into account when it approved 
the nonimmigrant pe.tition allowing the petitioner to work in the United States as an H-lB 
nonimmigrant, but the petitioner submits no evidence to support this claim and therefore it has no 
evidentiary weight. See Matter of Soffici, 22 I&N Dec. at 165. 
Regarding the petitioner 's individual qualifications, the brief states: 
USCIS-Nebraska Service Center has not specified what constitutes 'unusual 
significance' in the field of education. It concluded that "in this case, it has not been 
shown that the petitioner's individual accomplishments are of such an unusual 
significance that he1 qualifies for a waiver of the job offer requirement." 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 Case File. By 
1 Sic. The director's decision correctly used the pronoun "she"; the appellate brief erroneously substituted "he." 
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requiring the petitioner to submit evidence of ambiguous nature is 'unduly burdensome ' 
and in effect tantamount to requiring 'impossible evidence' since nobody has control 
over who and how her works are accessed and used, in the same way that it is 
impossible to realistically determine that [the petitioner] "will serve the national interest 
to a substantially greater degree than would ... similarly trained U.S. workers .[ "] 
NYSDOT does not require the petitioner to have control over others' use of her work. Rather, it requires 
evidence of influence beyond a local level, on the field as a whole. NYSDOT indicates that the best 
available gauge of likely future benefit is an inference drawn from one's past contributions to one's 
field. See id. at 219. 
The appellate brief repeats the list of "Awards and Commendations" previously described in the initial 
submission and the response to the request for evidence, adding "additional awards and recognition" in 
the form of several new certificates, all dated after the petition's filing date. 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.P.R. § 103.2(b)(1). 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). 
Apart from their late date, the newly submitted certificates do not demonstrate the petitioner's eligibility 
for the waiver. Many of the certificates are "Principal's Awards" from thanking the petitioner 
for her work not only as a teacher, but in other capacities such as an "Actmg Administrator on Duty" 
and "Dance Club Moderator." also presented the petitioner with certificates relating to her 
contributions to professional development at the school. Other certificates show the petitioner's 
ongoing professional training in topics such as "School Health Teacher Training" and "Learn More 
about Common Core." The petitioner has not shown that her participation in professional development 
activities sets her apart from other teachers in Arizona. 
The brief contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers, and asserts: "the Immigration 
Service should have presented its own comparable worker and deliberated its point in the proceeding, 
allowing the petitioner to rebut such a solid finding of fact." The NYSDOT guidelines are not an item­
by-item comparison of an alien's credentials with those of qualified United States workers. That 
decision indicated that the petitioner must establish a record of influence on the field as a whole. !d. at 
219, n.6. To do so does not require an invasive review or comparison of other teachers' credentials. 
Regarding the assertion that USCIS "should have presented its own comparable worker ," there is no 
presumption of eligibility that the director must overcome in order to justify denying the petition. The 
burden of proof rests with the party seeking an immigration benefit. Section 291 of the Act, 8 U.S.C. § 
1361. 
The brief asserts that "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. The statutory requirements to establish exceptional ability are below, not above, 
those for the national interest waiver; it is possible to establish exceptional ability but still not qualify for 
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the waiver. Also, the director did not require the petitioner to establish exceptional ability in her field. 
Instead, the director found that the petitioner's evidence failed to establish that her work has had an 
influence beyond the school districts where she has worked. ( 
After addressing the petitioner ' s specific qualifications, the brief again attempts to make the case for a 
blanket waiver for teachers, claiming that "U.S. workers in the teaching industry are not as competitive 
in the job market as against their foreign counter-parts"; that the NCLBA "trumps the Labor Certificate 
since job opportunities for U.S. workers are guaranteed once No Child Left Behind Act of 2001 is 
faithfully executed"; and that schools that fail to hire highly qualified teachers face "closure" as a result 
of losing federal funding. The petitioner cites no source for these claims. See Matter of Soffici , 22 I&N 
Dec. at 165. Furthermore, as expressed in NYSDOT at 217, it is not USCIS's role to establish blanket 
waivers based on occupation. That authority belongs to Congress, as shown by its addition of section 
203(b )(2)(B)(ii) to the Act. Therefore, by urging the creation of such a blanket waiver in an appellate 
brief, the petitioner seeks a degree of relief that users has no authority to provide. 
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. 
We 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; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.