dismissed EB-2 NIW Case: Science Education

(b)(6)
DATE: SEP 1 8 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U,S. Department of Homeland Scturity 
U.S. Citizenship and Immigration Services 
Admiriistrativ~ Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citi~enship 
and In;un:igration 
Servit~s 
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 lil)inigration 
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 not e~tablish agency 
policy throl)gh non-precedent decisions . If you believe the AAO incorrectly applieci cilrtent ic1w or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider ot 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/forms for the latest information Qli fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
7- Ron Rosen 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based itnmigtartt visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and N;itionality 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 secondary sc.hool science teacher in 
Maryland. The petitioner asserts that ail 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 . ~ 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 
na..~ioi.lal interest ofthe United States. 
On appeal, the petitioner submit.s a. brief from counsel and copies of standardized test results. 
Section 203(b) of the Act states, in pertinent part 
I 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) lrt QeneraL - Visa.s shall be made available ... to qualified immigrants who ate 
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 ofJob 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 State~ .· 
The director did · riot 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 establi.~bed 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 defme 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 Sei:J.ate that the committee had "focused on national interest by 
increasing the number arid proportion . of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
(b)(6) NON-PRECEDENT DECISION 
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, Citlzenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, a_lthough clearly 
an alien seeking to meet the [national interest] standard must make a showiqg 
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, ot 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 m~st be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seek$ emploYJ11ent in an-area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally; the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective· national benefit, the petitioner must eStablish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the futl1re, 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.F.R. § 204.5(k)(2) defines "exceptional . ability" as "a degtee 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 'ID· alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waivet just by demonstrating a degree Qf expertise 
significantly above that ordinarily encountered in his or her field of expertise. · 
The petitioner riled the Form 1-140 petition on September 16, 2012. In an introductory Statement, 
counsel noted an increased emphasis on science, technology, engineering and mathematics (STEM) 
education in the United States, .and stated that the petitioner's "petition for waiver of the labor 
certification is premised on her Masters Degree in Science Education, about thirty (30) years of 
dedicated and progressive teaching experience in Science Education; the awarqs and recognitions 
received by her, among others." 
Academic degrees, experience and institutional recognition (such as awards) are all elements that 
can coo.tribute toward a finding of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and 
(F), respectively. Exceptional ability, in tum, is not grounds for the waiver. See section 
203(b )(2)(A) of the Act. Particularly significant awards niay serve as evidence of the petitioner's 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
impact and influence on bet field, but the petitioner did . not demonstrate the significance of the 
. awards documented in the record. 
Counsel's exhibit list identified 26."Awards and Recognitions," four of which have no coooection to 
education. Instead, they relate to the petitioner's volunteer work with veterans, Boy Scouts and Girl 
Scouts, and registering voters in the Philippines. Education-related recognition included 
confirination th~t she served as a science fair judge and gave speeches and demonstrations at 
professional gatherings. Her work for yielded 
certificates of appreciation for her work on the occasion· of her departure from and in 
conjunction with American Education Week 2006. 
Counsel stated that the petitioner "has the heart ~nd determination" for ''helping the nation improve 
the edl,ICation of children in Science (STEM) Education." Cou.nsel did not identify any national­
level improvements, either in the United States or in the Philippines, that have previously resulted 
from the petitioner's work. 
The petitioner subrnitted witness letters from faculty, administrators, and students at v<giOlJS schools 
in .the United States and in the Ph,ilippines where the petitioner has taught. These witnesses pra.ised 
the petitioner's abilities as an educator, but did not indicate that the petitioner's work has had, or will 
have, an impact outside of the classrooms and local school systems that have employed her. 
The director issued a request for evidence on July J, 2012, stating: "The record does not contain 
significcmt first-hand documentary evidence to corroborate the importance ~nd influence of the 
petitioner's work." In response, the petitioner submitted her "Action Plan For Addressing the 
Critical Needs of Science Edl,lcation in the U.S." In that statement, the petitioner stated that she 
seeks ''to bring science education closet to citizens and put responsible science and culture at the 
heart of the students," to "increase the likelihood of them ernolling in science courses at the high 
sc.Qool level." The petitioner discussed her educational strategies at the. classroom level and stated 
her intention to continue to "attend professional development carriers." 
I 
'The petitioner submitted background materials about the need fot improvement in STEM education 
in the Un:ited States. These documents establish the substantial .intrinsic merit of STEM education, 
but they do not give n~tional scope to the work of one STEM teacher or establish that the petitioner's 
impact and influence warrant the national interest waiver. 
Counsel stated: 
Since a 'Nationa:t Mathematics Teacher' [sic] is not even a real concept but more of 
metaphysical cognition [sic], undersigned wishes to once again posit a rel}listic 
proposition upon which to establish that the self-petitioner's contributions will impart 
national-level benefits. 
Even the curricula used by each state education department in the United States vary 
from each 'other. 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
In other words, since not all NIW cases are based on prevailing Acts of United States 
Congres~, it is but harmless to assert that if an NIW Petition is ml,lge with premise on 
some prevailing Acts of United States Congress, that by itself renders the proposed 
·employment national · in scope. 
The petitioner is a sd~nce teacher, not a mathematics teacher. Further, there is no basis to conclude 
that Congress, by mentioning a given occupation in legislation unrelated to immigration, exempted 
workers in that occupation from the job offer requirement that Congress enacted in the INA. 
Counsel cited legisl().tion and policy initiatives that put special emphasis on education, especially in 
STEM subjects. Counsel emphasized the No Child Left Behind Act (NCLBA), 20 U.S.C. § 7801. 
Of these initiatives, the only identified statute that specifically addressed immigration was the 
Immigration Act of 1990 (IMMACT 90) (Pub.L. 101-649, 104 Stat 4978, November29, 1990). 
IMMACT 90 created the national interest waiver, but also (1) identified teachers a,s members of the 
professions and (2) specified that members of the professions holding advanced degrees are, as a 
rule, subject to the job offer requirement. Counsel, therefore, claims an intent ·behind the legislation 
tha.t is at odds with the plain wording of that same legislation. 
Counsel contended that the labor certification process cannot meet the nation's needs because school 
teachers "require only a bachelor's degree," and therefore labor certification ''would not meet the 
objective of employers to hire highly qualified teachers pursuant to No Child Left 13ellind." Counsel 
stated: "Section 1119 of the No Child Left Behind Act (NCLB) establishes the qualifications for 
teachers and paraprofessionals." Counsel then quoted the section of the NCLBA that defines a 
paraprofessional, but not the part that defines the term "highly qualified teach.er," 
Section 9101(23) of the NCLBA defines the term "highly qualified'' in reference to teachers. 
Sections 9101(23)(B) and (C) of the NCLBA require that a "highly qul.llified" teacher ''holds at'least 
a bachelor's degree." Because the NCLBA defines a teacher with a bachelor's degree as "highly 
qualified" (proVided the teacher meets other specified requirements), the labor certifiCation process 
does not thwart the NCLBA by setting the minimum degree requirement at a bachelor's degree 
rather than a master's degree. 
Counsel stated that labor certification "covers only the education and work experience 
qualifications" of job applicants, and that "even if two (2) teachers have exactly the same education 
degrees and work experience, their effectiveness cannot be identical.'' Therefore, counsel 
concluded, "the labor Certification process would not in any way [yield] an identically effective 
Science teacher as'' the petitioner. This assertion rests on the unsupported presumption that the 
petitioner is superior to every qualified United States worker who may seek her position. 
Counser claimed that the labor certification process is redundant because has l.llread y hired 
the petitioner, and would have fired her if her performance had been unsatisfactory. The same 
reasoning applies to every worker employed in the Un_ited States as a nonimmigrant, but it does not 
mean that labor certification applies only to prospective immigrants who are not yet working in the 
United States. 
(b)(6)r 
NON-PRECEDENT !Jf;f;ISION 
Page6 
Counsel contended that, under the NCLBA, schools tha~ fail to meet specified benchmarks will lose 
federal funding and be "abolished,"· thereby putting the teachers out of work, and therefore United 
States teachers have an incen.tive to waive the labor certification requirement for highly qualified 
teachers. It does not follow that Congress intended the NCLBA as a blanket waiver for teachers, a 
result that appears nowhere in the language of that statute. 
Counsel again listed various certificates that the petitioner received, and asserted that these materials 
"established her influence" and therefore "cannot just be ignored." Counsel did not explain how any 
of the materials demonstrated the petitioner's impact oil education beyond the locallev~l. 
The director denied the petition on December 18, 2012; because the petitioner had met only the 
"substcmtial in,trinsic merit" prong of .the NYSDOT national interest test On appeal, the petitioner 
submits copies of results from the Maryland School Assessment tests in reading and mathematics, 
The petitioner teaches neither of those subjects, and counsel does not explain the relevance Of the 
submitted data. 
Counsel . asserts that the director gave "insufficient weight : to the national educational interests 
enunciated in the No Child Left Behind Act of 200L" Co\,lnsel asserts that the original statutory and 
regulatory provisions are unclear regarding the requirements for the waiver, @d that Congress 
resolved this "obscurity" by passing the NCLBA three years after the publication of NYSD.OT ~s a 
precedent decision. Counsel claims that "the NCLB Act and the Obama Education Programs, taken 
collectively, provide the underlying context for the adjudication of a 
national interest waiver 
applica~ion made in conjunction with .an E21 visa petition for employment as a Highly Qualified 
Teacher irt the public Elementary School Special Education sector." (The petitioner has never 
claimed to be art elementary school special education teacher.) Counsel, however, identifies no 
specific legislative or regulatory provisions that exempt school teachers from NYSDOT or reduce its 
impact on them. · 
Contrary to counsel's assertion that the NCLBA modified or superseded NYSDOT, that legislation 
did not an1end section 203(b )(2) of the Act or otherwise mention the national interest waiver. ln 
contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106~95 
(November 12, 1999}, specifica.llyamended 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, counsel has not established that the NCLBA indirectly implies a similar 
legislative change. 
Counsel slates: 
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 substa11tially benent 
(b)(6)
Page 1 
NON-PRECEDENT DECISION 
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, abo~e, uses bo~d type. to highlight the phrase "national ... educational in.terests,"· 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 Sta.tes." Counsel has, thus, quoted the 
statute that supports the director's conclusion. By the plain wording of the st;;ttute th~t .counsel 
quotes on appeal, an alien professional holciing an advanced degree is presumptively subject to the 
job offer requiremeqt, eyen if that alien "will StlbStantially benefit prospectively the national ... 
educa,tional in..terests ... of the United States.'' Congress has not amended the Immigration and 
Nationality Act to remove the job offer requirement for teachers. The existence of leg~slatjon 
recognizing the importance of eclucation_does ~ot nullify l~gishition that specifically holds members 
. of the profess_ions (including teachers) to the job offer requirement that Congress created and· has 
never repealed. · · 
Cotlns~l ;;tsserts that the petitioner qualifies for the waivers even within the confines of NYSDOT, 
''because of·her effective role in pursuing the NCLB Act's goal and in implementing the Obama 
administration's education initiatives.'' Counsel~ however, cites no evidence of the petitioner's 
impact outside, of a handful of · schools in Local actions· undertaken in 
pursuit of national policy goals do not, themselves, necessa.rily yield benefits that are national in 
scope. Counsel does not claim or demonstrate that the petitioner's work has had a nationally 
perceptible effect oil STEM 'education. 
Cou_nsel asserts that there remains a pressing _ need for educational reform, becaus.e past efforts s1,1ch 
as Teach For Ame~ica have not produced satisfactory results, This is a general claim that. addresses 
the intrinsic merit of the petitioner's profession, but does not establish that the petitioner, in 
particular, qualifies for the waiver. 
Counsel cofltends "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, As noted previously, the threshold for exceptional 
ability is below, not above, the threshold for the national interest waiver. It remains that the 
petitioner's evidence does not establish eligibility for the national interest waiver. · The director djd 
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. · 
By statute, engaging in a profession (SJ.ICh as teaching) does not presumptively entitle such 
professionals to the national interest waiver. Congress has not established the existence of any 
blanket waiver for teachers. Eligibility for the waiver tests 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 ~ approved labor 
Gertification will be in the national interest of the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
The AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the in'unigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Oticnde, 26I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that htJ.rden. 
ORDER: The appeal is dismissed.