dismissed EB-2 NIW Case: School Psychology

identifyingdatadeletedto
preventclearlyunwarranted
¡nvasionofpersonalpnvacy
PUBLICCOPY
U.S.Departmentof HomelandSecurity
U.S.CitizenshipandImmigrationServices
AdministrativeAppealsOffice (AAO)
20 MassachusettsAve.,N.W., MS2090
Washington,DC 20529-2090
U.S.Citizenship
and Immigration
Services
DATE: AUG 0 8 2012 OFFICE:TEXASSERVICECENTER
IN RE: Petitioner:
Beneficiary:
PETITION: ImmigrantPetitionfor AlienWorkerasaMemberof theProfessionsHoldinganAdvanced
DegreeoranAlienof ExceptionalAbility Pursuantto Section203(b)(2)oftheImmigration
andNationalityAct, 8U.S.C.§ 1153(b)(2)
ONBEHALFOFPETITIONER:
INSTRUCTIONS:
Enclosedpleasefind thedecisionof theAdministrativeAppealsOfficein yourcase.All of thedocuments
relatedto this matterhavebeenreturnedto theofficethatoriginallydecidedyourcase.Pleasebeadvised
thatanyfurtherinquirythatyou mighthaveconcerningyour casemustbemadeto thatoffice.
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional
informationthatyouwishto haveconsidered,youmayfile a motionto reconsideror a motionto reopenin
accordancewith the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The
specificrequirementsfor filing sucha motioncanbe foundat 8 C.F.R.§ 103.5.Do not file any motion
directly with theAAO. Pleasebeawarethat8C.F.R.§ 103.5(a)(1)(i)requiresanymotionto befiledwithin
30 daysof the decisionthat the motion seeksto reconsideror reopen.
Thankyou,
PerryRhew
Chief,AdministrativeAppealsOffice
www.useis.gov
Page2
DISCUSSION: TheDirector,TexasServiceCenter,deniedtheemployment-basedimmigrantvisapetition.
Thepetitionerfiled a motionto reconsiderthe decision,which the directordismissed.The directoralso
dismisseda secondmotionto reconsider.Thematteris nowbeforetheAdministrativeAppealsOffice(AAO)
onappeal.TheAAOwill dismisstheappeal.
Thepetitionerseeksto classifythebeneficiaryundersection203(b)(2)of theImmigrationandNationalityAct
(theAct),8U.S.C.§ l 153(b)(2),asamemberof theprofessionsholdinganadvanceddegree.Thepetitioner,a
public school board,seeksto employ the beneficiary as a schoolpsychologist. The petitioner assertsthat an
exemptionfrom the requirementof ajob offer, andthus of a labor certification, is in thenationalinterestof the
United States.The directorfoundthat thebeneficiaryqualifiesfor classificationasa memberof theprofessions
holdinganadvanceddegree,butthatthepetitionerhasnotestablishedthatanexemptionfromtherequirementof
ajob offerwouldbein thenationalinterestof theUnitedStates.
Onappeal,thepetitionersubmitsabrieffromcounselandcopiesof previouslysubmittedmaterials.
ThepetitionerfiledtheFormI-140petitiononNovember15,2010.ThedirectordeniedthepetitiononJuly
25,2011andallowedthepetitioner30 daysto file anappealor a motionto reopenand/orreconsiderthe
decision.The30-dayfiling deadlinederivesfromtheU.S.CitizenshipandImmigrationServices(USCIS)
regulationsat8C.F.R.§ 103.3(a)(2)(i)forappeals,and8C.F.R.§ 103.5(a)(1)(i)for motions.
On August29,2011,thedirectorreceivedthepetitioner'smotionto reconsiderthedecision.Thedirector
dismissedthe motion as untimely on September30, 2011, becausethe petitionerdid not file the motion
within 30 daysafter the dateof the decision.
Thepetitionerfiled a secondmotionto reconsideron October21.2011. Counselcontendedthatthefirst
motion was in fact timely, and the director should haveconsideredthe merits of the first motion. The AAO
agreeswith counsel on this point. Whenevera personhas the right or is required to do someact within a
prescribedperiodaftertheserviceof a noticeuponhim andthenoticeis servedby mail, 3 daysshallbe
addedto theprescribedperiod. 8 C.F.R.§ 103.8(b).By this formula,the motionwasdueno laterthan
August27, 2011. August27, 2011,however,fell on a Saturday.August29, 2011wasthe following
Monday. Under the USCIS regulation at 8 C.F.R. § 1.2, when the last day of a specified period for taking an
action falls on a Saturday,Sunday,or a legal holiday, the period shall run until the end of thenext day which
is not a Saturday,Sunday,or a legal holiday.
The director dismissed the second motion on December 5, 2011. The director repeatedthe erroneous
conclusion that the first motion was untimely. Following a cursory discussion of the merits of the
petitioner'sclaims,thedirectorreaffirmedtheconclusionthatthepetitionerhadnotestablishedeligibility for
thenationalinterestwaiver.
The petitionerfiled a timely and substantiveappealon January5. 2012. To remedythe errorsin the
director'stwo decisionson motion,the AAO will give full considerationto themeritsof thepetitionand
supportingevidence.
Section203(b)of theActstates,inpertinentpart:
Page3
(2) AliensWhoArc Membersof theProfessionsHoldingAdvancedDegrecsor Aliensof Exceptional
Ability.-
(A) In General.- Visasshallbemadeavailable. . . toqualifiedimmigrantswhoaremembersof
the professionsholding advanceddegreesor their equivalentor who becauseof their
exceptionalability in the sciences,arts,or business,will substantiallybenefit prospectivelythe
nationaleconomy,cultural or educationalinterests,or welfare of the United States,andwhose
servicesin the sciences,arts,professions,or businessare soughtby an employerin the United
States.
(B)WaiverofJobOffer
(i) . . . the AttorneyGeneralmay,whenthe AttorneyGeneraldeemsit to be in the
nationalinterest,waive the requirementsof subparagraph(A) that analien's servicesin
the sciences,arts, professions,or businessbe sought by an employer in the United
States.
Thedirectordid notdisputethatthepetitionerqualifiesasa memberof theprofessionsholdinganadvanced
degree. The sole issuein contention is whetherthe petitioner has establishedthat a waiver of thejob offer
requirement,andthusa laborcertification,is in thenationalinterest.
Neitherthestatutenorthepertinentregulationsdefinetheterm"nationalinterest."Additionally,Congressdid
notprovideaspecificdefinitionof "in thenationalinterest."TheCommitteeontheJudiciarymerelynotedin its
reportto the Senatethat the committeehad"focusedon nationalinterestby increasingthe numberand
proportion of visas for immigrantswho would benefit the United Stateseconomicallyand otherwise.. . ." S.
Rep.No. 55, 101stCong, 1stSess_11(1989).
Supplementaryinformationto regulationsimplementingthe ImmigrationAct of 1990,publishedat 56 Fed.
Reg.60897,60900(November29,1991),states:
The Service [now USCIS] believes it appropriate to leave the application of this test as
flexible aspossible, 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 seekingto qualify as "exceptional."] The burden will rest with
the alien to establishthat exemption from, or waiver of, thejob offer will be in the national
interest.Eachcaseistobejudgedonitsownmerits.
In re NewYorkStateDept.of Transportation,22 1&NDec.215(Act. Assoc.Comm'r1998),hassetforth
severalfactorswhichmustbeconsideredwhenevaluatinga requestfor a nationalinterestwaiver. First,the
petitionermustshowthatthe alienseeksemploymentin an areaof substantialintrinsicmerit. Next,the
petitionermustshowthattheproposedbenefitwill benationalin scope.Finally,thepetitionerseekingthe
waivermustestablishthatthealienwill servethenationalinteresttoasubstantiallygreaterdegreethanwouldan
availableUnitedStatesworkerhavingthesameminimumqualifications.
Whilethenationalinterestwaiverhingesonprospectivenationalbenefit,thepetitionermustestablishthatthe
alien'spastrecordjustifiesprojectionsof futurebenefitto thenationalinterest.Thepetitioner'ssubjective
Page4
assurancethatthealienwill, in thefuture,servethenationalinterestcannotsufficeto establishprospective
nationalbenefit. Theintentionbehindtheterm"prospective"is to requirefuturecontributionsby thealien,
ratherthanto facilitatetheentryof analienwith nodemonstrableprior achievements,andwhosebenefitto the
nationalinterestwouldthusbeentirelyspeculative.
TheAAO alsonotesthattheUSCISregulationat 8C.F.R.§ 204.5(k)(1)defines"exceptionalability" as"a
degreeof expertisesignificantlyabovethatordinarily encountered"in a givenareaof endeavor.By statute,
aliensof exceptionalability aregenerallysubjectto thejob offer/laborcertificationrequirement;theyarenot
exemptby virtueoftheirexceptionalability. Therefore,whetheragivenalienseeksclassificationasanalien
of exceptionalability, or asa memberof the professionsholdingan advanceddegree,that aliencannot
qualify for a waiverjust by demonstratinga degreeof expertisesignificantlyabovethat ordinarily
encounteredin his or her Geldof expertise.
Thepetitioner'sinitial submissionindicatedthatthebeneticiaryhadworkedfor thepetitionerasa school
psychologist since 2004. The beneficiary's earlier experience included practice in a range of settings,
including schools,clinics andprivate practice. Counselstated:
On first impression,it would appearthat a schoolpsychologistwould not qualify for a
NationalInterestWaiverbecausethey arenot in greatdemand:indeedtheremaybe an
abundantnumberof schoolpsychologistsavailable.. . . Moreover. schoolpsychologistsmay
be consideredto hav{e] only a marginal impacton the national interest.. .
[N]onetheless,counselbelievesthatthis caseis truly uniqueandshouldnot be limitedto
testing the labor market through labor certification. For one, [the beneficiary] is not being
consideredmerelyasa schoolpsychologist,but ratherfor her pastperformanceandtwenty
yearsexperiencein ensisintervention,bothin theUnitedStatesandtheBritishWestIndies.
HerextensiveandmostimpressiveCV, includinghertrainingandexperienceattestthatshe
is umquem crisis mtervention. Shereceivedthe highestmedaland awardfrom the
Queen[']sGovernmentin Montserratfor her exceptionalwork m orgamzing,coordinating
andimplementingprogramsduringrecemvolcaniceruptionsanddevastatinghurricaneson
that island. . . . [The beneficiary] has published extensively through numerous papers and
books on mental health problems brought on by chaotic conditions which impacted on
churchesandcommunitiesthrough variousoutreachprograms.
Since working in the US for the past five years, [the beneficiary] has received recognition
and certification from the New JerseyStateDepartmentof Mental Health for her continuing
work as a first responder. Under this program, relatively new and as the result of 9/11
disaster,[thebeneficiary]hasbeenawardedfull certificationto continueher specialized
workin crisismiervention.Notethatthisexpertisein crisisinterventionisnotastandardjob
descriptionfor schoolpsychologist[s]but applicableonly to a limited numberof first
responderswhoareexpertin crisisintervention.
Counsel'sphrase"certificationfromtheNewJerseyStateDepartmentof MentalHealth"appearsto referto
certification in DisasterResponseCrisis Counseling(DRCC). The initial submissionincludedno
documentaryevidencethatthebeneficiaryheldDRCCcertificationatthetimeof filing thepetition. Some
witnessesquotedin therecordindicatethatthebeneficiaryheldthatcertification,butothers,includingthe
Page5
beneficiary herself, stateonly that the beneficiary had completedthe necessarytraining requirementsfor that
certificate. None of the witnesseswho statedthat the beneficiaryalreadyheld the certificationwere
employedby thecertifyingagency,andthereforetheywerenotin apositiontomakeclaimsonbehalfof that
agency.An August30,2010letterfrom directorof TrainingandInformationServices
for theMentalHealthAssociationin NewJersey,Inc.,indicatedthatthebeneficiary"is schedulednextweek
to be fingerprintedfor this certification,"afterwhich "we expectthat shewill be awardedtheNJDRCC
certificate,barringanyunforeseenresult." Thisletterdatesfromseveralmonthspriorto thefiling date,but
the initial submissionincluded no documentationof the certification itself.
With respectto the beneficiary's publication history, the beneficiary's curriculum vitae (CV) doesnot show
anypublishedworkoncrisisinterventionsince2003,andall of herpublishedcrisis-relatedworksince1998
hasdealtspecificallywith volcanicactivity in Montserrat.The recorddoesnot establisha high risk of
volcanicactivityin WestOrange,NewJersey.Thebeneficiarys CV includesthefollowingdescriptionsof
herfourmostrecent"publications":
2009-
It is not clear how many of the above four claimed "publications" have actually been"published" in the usual
senseof that term. The recorddoesnot indicatethat a primary function of the beneficiary's intendedposition
as a school psychologist has involved, or will involve, preparing new research or other material for
widespreadpublication (asopposedto distribution within a single schooldistrict).
Counselstated:"By counselingandtreatingchildrenandfamiliesunderseverestressfrom bothnatural
calamitiesandman-madeterroristacts,[thebeneficiary]is renderingworkwhichis clearlybeneficialto our
economicinterestsandsocialfabricby,for one,helpingto reducedrop-outratesin schools."Counselcited
no statisticalevidenceto showthat"naturalcalamitiesandman-madeterroristacts"weresignificantcauses
of "drop-outratesin schools"until the beneficiary'sarrivalreversedthattrend. Withoutsuchevidence,
counsel'sassertionislittle morethanspeculation.
Theinitial submissionincludednumerouswitnessletters,somepreparedfor thepetitionin 2010,andothers
from2003. Manyof thewitnessesclaimednotrainingin psychology;theyincludechurchofficials,ahead
andnecksurgeonandanobstetrician/gynecologist.Overall,thewitnessespraisedthebeneficiary'straining,
experienceanddedicationin fairly generalterms.Onewitness, (whostudiedalongside
Page6
the beneficiaryat RutgersUniversity),claimedthat the petitionerwas,"for manyyears. . . the only
psychologist"in Montserrat,buttherecorddoesnototherwisesupportthisclaim.
the petitioner'sdirectorof StudentSupportServices,offeredthe most thorough
description of the beneficiary's work for thepetitioner:
[Thebeneficiary),anexceptionallygiftedchild psychologist,hasbeenemployedwith our
Boardfor thepastsix years. . . working with students,ages3-21yearsold, uponreferralfor
evaluation,crisis interventionand counseling. During that time she has introducedand
implementeda numberof plansandactivitieswhich makesher an invaluableindividual
whose continued employment would undoubtedly be in the national interest of the United
States. Permit meto explain.
Theneedfor [thebeneficiary's]servicesasa schoolpsychologistto work with studentsin
the elementary and middle schools in our district is invaluable. She reviews students'
assessmentsand develops individual plans; preparescrisis intervention plans and resolves
students'learningandbehaviorproblems.Shealsoworksdirectlywith child studyteams,
teachers,andschoolpersonnelto improveclassroommanagementstrategies.Shefurther
counselswith parentsandstudentsto improveteachingandlearningmethodsandtechniques
for ourspecialneedschildrenincludingthegiftedandtalentedstudents.
[Thebeneficiary's]expertisein crisisinterventionis well knownto ourdistrict. Manytimes,
as Director, I call upon her assistancewith many critical incidents. Not only does [the
beneficiary] serve our district in this capacity, but she also trains other child study team
membersin this particular skill. Shehasbecomean outstandingresourceto this department
regardingher crisis mterventionexpenence.
Her C.V. (annexedhereto)is most impressivehaving over 20 yearsexperienceasa certified
psychologistin both the United StatesandBritish West Indies. Shehaspublishedpaperson
childpsychology,chairedconsultanciesin suchdiversesubjectsasdrugprevention,school
management and self-esteem promotion; served as visiting lecturer at the American
Universitv of the Caribbean Medical School; provided training and coordinating of crisis
mtervention programs sponsoredby the International Red Cross..Montserratbranch; and
developing a project andwriting the story of volcanic activity on the island of Montserrat.. .
[The beneticiary's] exceptional ability in crisis intervention makes her continued
employmentcrucialto ourschooldistrict. Forpeoplein thethroesof adisasterwherelife is
oftenchaotieanddifficult, it is essentialto havea seasonedcrisisinterventionspecialistwith
manyyearsexperience,bepartof anyteamof firstresponders.
A numberof witnessespraisedthe beneficiary'scrisisinterventioneffortsin Montserrat.particularlyafter
volcaniceruptionsbeganto devastatethat islandin 1995. , identifiedabove,statedthatthe
petitioner"publishedachildren'sbook. . . to helpthechildrenof Montserratunderstandthetraumaticeffect
of thevolcanoandtoteacheffectivecopingskills."
Page7
, chairmanof theDepartmentof Applied PsychologyatRutgersUniversity,statedthat
thebeneficiary'svolunteerworkin Montserratearnedher"thePetersonPrize,anhonorthatis bestowedon
psychologistswho havemadeanoutstandingcontributionto their communityandprofession." Therecord
indicatesthatthe RutgersGraduateSchoolof AppliedandProfessionalPsychology(GSAPP)awardsthe
PetersonPrize annuallyto "[a] GSAPPgraduatewho 'throuaha sustainedcareerin psychologyhas
contributedat thehighestlevelof distinctionto thepublicgood."' Materialsindicatethatthebeneficiary
receivedtheprize"for heroutstandingcontributionsasa pioneerprofessionalpsychologistin the British
WestIndies(BWI) andBritishVirgin Islands(BVI), whereshehasoftenbeenthefirst psychologistwith a
doctoral degree." The recorddoesnot indicate that the stateof psychology in the BWI andBVI in the 1980s
and 1990sresemblethat in New Jerseytoday, or that the beneficiary's contributions in the Caribbeanimply
similar contributions for the petitioner.
also statedthat the beneficiary"completedall requirementsfor the schoolpsychology
certificatein NewJersey.. . . Shecannot,however,beemployedasa schoolpsychologistunlesssheis a
registeredresidentin NewJersey. [Thebeneficiary]is applyingfor residency."This indicationthatthe
beneficiary"cannot. . . beemployedasa schoolpsychologist"in NewJerseyis notconsistentwith repeated
assertionsby boththepetitionerandthebeneficiarythatthebeneficiaryhasindeedheldthatposition,with
thattitle, for severalyears.
statedthatthe beneficiary's"work is well knownandgreatlyrespectedby somegovernmentsin Caribbean
where she has been contractedto work as a consultant. She is recognizedas one of the leading Applied
Psychologistsof the LeewardIslands." Thepetitioner,however,haspredicatedthe waiverclaimon the
beneficiary's intended employment as a school psychologist. In this respect,Prof. Irish claimed that the
beneficiary's"work with [thepetitioner]m recentyearsis highly acclaimedbecauseof thesuccessof her
work with diverseethnic populationsand peopleof different nationalities." This assertionthat the
beneficiary's "work . . . is highly acclaimed" is not, itself, evidenceof that acclaim.
Apart from the beneficiary'spost-eruptionefforts in Montserratandher churchactivities,neitherof which
fall underthe purview of her professionalwork in the United States,the witnessletters depict the beneficiary
as a competent and diligent professional. The letters do not, however, explain how her ongoing work for the
petitioner has significant impact beyond the West Orange School District. Rather, the emphasisis on her
local impact. West Orange for instance, stated that the beneficiary "has been
instrumentalin developingprogramsfor our community's families and students. . . , and she has
demonstratedhervaluein waysthathavehelpedcountlessstudentsandfamiliesin WestOrange."
Witnessesprovided details about the beneficiary's work in the small, volcanic island of Montserrat in the
hurricane-proneCaribbean. In contrast,they providedlittle informationaboutthe petitioner'scrisis
interventionworkin NewJersey,exceptto saythathertraininghaspreparedherwell for suchworkshouldit
becomenecessary.
OnMay 14,2011,thedirectorissuedarequestforevidence(RFE),instructingthepetitionerto establishthat
thebenefitfrom thebeneficiary'swork will benationalin scope,andthatthe laborcertificationprocess
wouldbeadverseto thenationalinterestin this instance.Thedirectoralsorequestedfurtherinformation
aboutthe exactnatureof the beneficiary'srole in her field, andinstructedthe petitionerto supportthe
previousassertionthatthebeneficiary's"work . . . is highlyacclaimed."
Page8
In response,counselstated:
Thepetition,althoughrelatingto aschoolpsychologist,is seekinganationalinterestwaiver
in an areafar and abovethat of schoolpsychologistas delinedin the Dictionaryof
OccupationalTitles. It encompassesanindividualwho,throughherexperienceandcrucial
work in crisis intervention, would serveto benefit the national interest of the United States.
Exampleswerecited anddocumentedin the prior submission,including [the beneficiary's]
work covering volcanic eruptions and hurricane devastation and most recently, the utter
destruction through flooding in the Mississippi Valley and severetornados in Alabama,
Oklahoma and especially Missouri (Jophin) [sic], as witnessed on TV, shows total
destructionof lives andhomes,leaving survivors in most dire needof assistance.
Counsel's wording implies that information about the flooding and tornadoes in the Southeasternand
MidwesternUnitedStateswasamongthe"[e]xamples. . . citedanddocumentedin theprior submission."
The eventsdescribed,however,occurredin April andMay of 2011,severalmonthsafter the filing of the
petitionand,in someinstances,afterthedirectorissuedtheRFE. It isnotclearwhycounselcitedthesethen-
recentevents.Thedirectordid not suggestthatnaturaldisastersareunknownor rarein theUnitedStates,
andthereforeit is not necessaryto show that they takeplace.
Thepetitionersubmitteda copyof thebeneficiary'sDRCCcertificate,showinganissuedateof December
12, 2010. Therefore,the beneficiary was not, in fact, "certified by the Stateof New JerseyDepartmentof
Human Services"at the time the petitioner filed thepetition. An applicant or petitioner mustestablishthat he
or sheis eligiblefor therequestedbenefitatthetimeof filing thebenefitrequest.8 C.F.R.§ 103.2(b)(1).
USCIS cannot properly approve the petition at a future date after the petitioner or beneficiary becomes
eligibleunderanewsetof facts. SeeMatter ojKatighak, 141&NDec.45,49 (Reg'l Comm'r 1971).
Counsel assertedthat the beneficiary, "[a]s a 11rstresponderrecognizedand certified by the Stateof New
JerseyDepartmentof Human Services,is uniquely qualified to lend assistancewhere national disastershave
beendeclared."Counselemphasizedthis claim,stating:"The Joplindisasteris a casein point.. . . [F]irst
responders have traveled from many states in the nation . . . to lend immediate assistance. [The beneficiary],
who recently hasbeencertified, would therefore alsobe eligible to rendervaluable assistance."Counseldid
not claim, and the record does not show, that the beneficiary actually renderedassistanceafter the Joplin
tornado,or that anyonehadattemptedto enlist her services(or thoseof anyonewho held New JerseyDRCC
certification)for thatpurpose.Counselclaimedonly thatthe beneficiary'sexperienceandtraining"would"
havebeenuseful in theaftermathof the disaster.
Counselasserted:"Thereis no claimbeingmadethatthereis a shortageof U.S.workersunderthetitle of
SchoolPsychologist."Counselhadpreviouslyacknowledgedthat,generally,"a schoolpsychologistwould
not qualify for a NationalInterestWaiver," and that "there may be an abundantnumberof school
psychologists available," which would reduce the chancesthat the Departmentof Labor would approve a
laborcertificationon thebeneficiary'sbehalf. Thewaiverrequest,therefore,emphasizesactivitiesbeyond
andseparatefromthoseof aschoolpsychologist,eventhoughthatisthebeneficiary'sjob title.
Furthermore, the petitioner seeksan employment-basedimmigrant classification for the beneficiary. The
waiver,therefore,rnustderivefrom her employmentactivities. Thepetitionerhasnot shownthat crisis
Page9
counselinghas or will constitute a siunificant element of the beneficiary's routine job duties. Instead,the
petitionandwaiverapplicationappearto restontheassertionthat,althoughthebeneficiarywouldprimarily
work asa schoolpsychologist,it is in thenationalinterestto haveheronhandasa crisiscounselorin case
disasterstrikes. The waiver claim, therefore,restson speculation.
Counselquoted previouslysubmittedletter to supportthe assertionthat, given the
beneficiary's"exceptionalability in crisisintervention,""it would becontraryandcounterproductiveto the
nationalinterestto deprivetheemployerof [thebeneficiary's]exceptionalability." As notedpreviously,the
plainwordingof thestatutemakesit clearthatexceptionalability is not,onits face,groundsfor a national
interest waiver. Rather, exceptionalability is an elementof an employment-basedimmigrant classification
thattypicallyincludesajob offerrequirement.
Most of the exhibits submitted in responseto the RFE are copies of previously submitted materials. The
exce tions are the beneficiarv's DRCC certificate, discussedabove, and a letter from
letter is
datedNovember17,2010,just afterthepetition'sfiling date.
stated:"While manypsychologistsmayhaveexperiencein tramnaandcrisisinterventionwith
adults,veryfewhavethisbackgroundwith children.. . . [1]tis criticalthatwerecruitandencouragepeople
with thisexpertiseto cometo theUnitedStatesto live andwork." statedthathesupportsthe
waiver application"in order that [the beneficiary]may continueto perform valuablework in our state,
particularlyin the areaof crisis intervention." This wording impliesthat the beneficiaryhad already
performedsuchwork in New Jersey,but did not elaborateor provide any examples. The
referenceto crisis intervention"in our state"did not indicateany expectationthat the beneficiarywould
perform suchwork elsewhere.
In the July 25, 2011denialnotice,the directoracknowledgedthatthe petitionersubmitted"generalized
lettersof recommendation,"but found that the petitioner hadnot submitted"corroborative primary evidence.
. . specifying the direct role the beneficiary hasplayed in the field." Noting that the petitioner would employ
the beneficiary primarily as a school psychologist, the director found that the petitioner had not established
that the benefit from the beneficiary's employment in that occupation would have national scope.
The petitioner's first motion included copies of the beneficiary's written work, mostly produced for
Montserrat, andcopiesof previously submittedwitnessletters. Counselcontestedthe director's finding that
the witness letters were general and uncorroborated. To support this claim, counsel quoted from several
witness letters. Some of the quoted letters were, in fact, general in nature. Others focused on the
beneficiary's work in Montserrat or with her church, neither of which addresshow her presentwork as a
schoolpsychologistfor thepetitionerwarrantsa nationalinterestwaiver. Witnessesdiscussedrecognition
thatthebeneficiaryreceivedasa graduatestudentor whileworkingin Montserrat.Therecord,however,is
devoidof evidencethatsuchrecognitionhascontinuedin thebeneficiary'scurrentposition.
Counselpointedto thebeneficiary'sannualperformancereview,conductedbythepetitionerin March2011.
While favorable,the review mentionsthe beneficiary's crisis counselingwork only in the context of a list of
training coursesthat the beneficiaryhastaken"[i]n an effort to keepcurrentwith the bestpracticesin the
fieldandto improveherperformance."Thereview,thus,reinforcestheconclusionthatthebeneficiaryseeks
Page10
to enterthe United Statesfirst and foremost asa schoolpsychologist,andthat the waiver claim restsheavily
ontheuncertainpossibilitythatshemayputhercrisiscounselingskillsto use.
The petitioner'ssecondmotion,and the director'sDecember2011dismissalof that motion,concerned
proceduralissuesthatrequireno furtherdiscussionhere. On appealfromthedirector'slatestdecision,the
petitionersubmitsstill morecopiesof materialsthat,in somecases,the petitionerhadalreadysubmitted
threetimesbefore(with theinitial submission,theresponseto theRFE,andin thefirst motion). Someof
theseexhibits appearmore than once in the appealitself, becausethe petitioner resubmitscopies of both the
RFEresponseandtheexhibitsthataccompaniedthefirst motion.
Counselrepeatsthe claim that the beneñeiary's "training and experiencein crisis intervention is unique and
led to heracclaimin theU.S.andtheBritishWestIndies." With respectto thebeneticiary'swork in the
BWI, thepetitionerhasrepeatedlyindicatedthatMontserratandotherislandsin theBWI lackedsignificant
psychologicalinfrastructureduringthe beneficiary'stime there,whereas,in contrast,existingfacilitiesin
New Jerseyincludethe graduateschoolwherethe beneficiaryherselfreceivedmuchof her advanced
training. GiventhedemonstrablydifferentconditionsbetweentheUnitedStatesandtheBWI, thereis little
causetobelievethatherfutureimpactin onewill closelyresembleherpastachievementsintheother.
The recorddoesnotcrediblydocument"acclaimin the U.S." The recordindicatesthatlocalauthorities
considerthe beneficiary to be a well-qualified school psychologist whosecrisis intervention training would
be a useful assetin the uncertain event that her servicesin that areawould becomenecessarvin the local
area. It is clear from the record that the beneficiary is first and foremost a school psychologist and, in the
United Statesat least, her crisis intervention expertise is a contingency, albeit one that several witnesses
value highly. The claim essentiallyboils down to the assertionthat the beneficiary's day-to-day functions
lack national scopeand do not warrant a national interestwaiver. but it is crucial that shebe available in the
event of an unforeseeableemergency. Eligibility for the national interestwmver restson a showing that the
alienwill servethenationalinterest,notonspeculationthat,undercertainconditions,shemightdoso.
As is clearfroma plainreadingof thestatute,it wasnottheintentof Congressthateverypersonqualifiedto
engagein a professionin theUnitedStatesshouldbeexemptfi-omtherequirementof ajob offerbasedon
national interest. 1.ikewise,it doesnot appearto have beenthe intent of Congressto gram national interest
waiverson the basisof theoverall importanceof a given profession.ratherthan on the meritsof the individual
alien. On the basisof the evidencesubmitted,thepetitionerhasnot establishedthata waiver of the requirement
of anapprovedlaborcertificationwill bein thenationalinterestof theUnitedStates.
The burdenof proof in theseproceedingsrestssolely with the petitioner. Section291 of the Act, 8 U.S.C. §
1361. Thepetitionerhasnot sustainedthatburden.
ORDER: Theappealisdismissed.