dismissed EB-2 NIW Case: Science Education

(b)(6)
DATE: 
DEC 0 8 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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:Uwww.uscis.gov/forms 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, 
J���!trative Ap�ls Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before 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 with post-baccalaureate experience 
equivalent to an advanced degree. The petitioner seeks employment as a physics and chemistry teacher. 
He has worked for since 2004. 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 the 
classification sought, 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 legal brief and supporting evidence. 
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 with the defined 
equivalent of 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, 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 future, 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 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 significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on June 18, 2013. In an 
accompanying statement, the petitioner acknowledged: ' petition for him as an immigrant 
worker was already approved in December 2008, but some constraints not attributable to Petitioner 
that arose before he could adjust status prevented him " from doing so. The petitioner did not 
identify the "constraints." USCIS records show that the petitioner filed Form 1-485, Application to 
Register Permanent Resident Status or Adjust Status, on August 4, 2014; that application is now 
pending. 
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The petitioner cited background information about education reform and the importance of teaching 
science, technology, engineering and mathematics (STEM). This information speaks to the intrinsic 
merit of STEM education, which is not in dispute in this proceeding. Congress has created no 
blanket waiver for STEM educators. Rather, Congress defined school teachers as members of the 
professions at section 101(a)(32) of the Act, and held members of the professions holding advanced 
degrees to the job offer requirement at section 203(b )(2)(A) of the Act. Assertions about the 
cumulative importance of high school education at the national level do not show that the work of 
any one high school teacher produces benefits that are national in scope. 
The petitioner identifies some of his former students who have gone on to study or work in the 
sciences, but the petitioner has not shown that this has had a national-level impact on the sciences or 
science education. 
Letters from colleagues, administrators and former students attest to the petitioner's local impact, but 
do not show that the petitioner has had an influence on the field of science education as a whole. 
Regarding the third prong of the NYSDOT national interest test, the introductory statement includes 
the following claims: 
It cannot be denied that [the petitioner's] possession of the equivalent of a Master's 
degree gives him an edge over other high school Science teachers. Petitioner does 
understand that this fact alone is not sufficient to warrant a national interest waiver. 
Petitioner, however, is highly confident that the sum total of his credentials sets him 
substantially above his colleagues. 
[The petitioner] respectfully draws attention to his 26 years of progressive experience 
as a teacher which certainly work to distinguish him from most others. The 
professional development endeavors he undertook ... have helped him become the 
effective teacher he is .... 
He is also the recipient of various awards and special recognitions that are not readily 
given to just any Science teacher. Notably, after iust his first year of teaching in the 
U.S., he already received the award, 
because of the nomination of a former Physics student who believed in his dedication 
and commitment. ... 
[H]e is a member of national and professional organizations like the 
Experience, memberships, and recognition are factors that can contribute to a finding of exceptional 
ability. See 8 C.F.R. § 204.5(k)(3)(ii)(B), (E), and (F). Exceptional ability, in turn, is not sufficient 
to establish eligibility for the waiver, because section 203(b )(2)(A) subjects aliens of exceptional 
ability to the job offer requirement. 
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If the petitioner had received awards or other recognition as a result of influential contributions to his 
field beyond the local level, such materials might have considerable weight, but the petitioner has 
not established that this is the case. Most of the exhibits submitted as awards are from employers or 
from schools that the petitioner attended, for contributions at the local level. The exception is a 
letter from the publisher of This letter made 
no reference to an award as described above. Rather, the letter indicated that the petitioner had "been 
selected for inclusion in the of a directory bearing that title. The publisher's letter 
claimed that this selection "is a tremendous honor, " but apart from the publisher's own promotional 
materials, the record contains no evidence that this directory listing is particularly prestigious. 
USCIS need not rely on the self-promotional material of the publisher. See Braga v. Poulos, No. CV 
06 5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 604888 (91h Cir. 2009) (concluding that the AAO 
did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as 
major media). The publisher named no specific contributions that warranted the petitioner's 
inclusion in the volume. 
With respect to "[t]he professional development endeavors he undertook, " professional development 
courses are a requirement for continued licensure in Maryland.1 Completion of mandatory training 
does not distinguish the petitioner in his field. Pursuit of additional training beyond the minimum 
establishes his diligence, but does not inherently show the petitioner's influence on his field. 
The introductory statement indicated that the petitioner "has had the privilege of participating in 
discussions, formulations, and special trainings where such participations are offered only by 
invitation." In a separate, personal statement, the petitioner described one example: 
On May 2nd [2013], I participated in a focused [sic] group of Chemistry and 
Physics teachers in the State initiated by the I - • · for 
Education to discuss some issues the STEM teachers face daily and to give 
suggestions on how the industry, higher education and government practitioners who 
use science concepts in their work can support teachers in their quest for superior 
student achievement. This will also be used to expand the STEMnet Teacher Hub 
developed in partnership with the Education through 
the Race to the Top federal project. 
(Emphasis in original.) The petitioner did not submit evidence to establish the criteria for invitation 
in focus groups and other activities, or to show that his participation in the focus group led to 
significant changes or improvement in science education beyond the local level. 
The petitioner stated: "my membership [in] the allowed 
me to be able to give feedback to the finalization of the Next Generation Science Standards 
1 See (added 
to record November 20, 2014). 
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(NG S S)." The petitioner has not shown that his feedback resulted in significant changes to those 
standards. The petitioner has not claimed any role in drafting the standards. 
The petitioner stated: 
I was elected by to be one of the representatives to the 
in Georgia and to the 
Maryland State . . . convention in October. Since 
2005, I have consistently been elected as one of the faculty representatives in my 
school to the 
The petitioner did not explain how his attendance at union conventions has influenced the field of 
science education as a whole. Furthermore, the record shows that the petitioner was one of dozens 
of delegates to the national convention in Atlanta; a partial list of delegates, in alphabetical 
order, shows 24 names from "A" to "L." The record does not show that the petitioner stood out at 
the national gathering, for example by introducing significant initiatives that the then adopted 
at a national level. 
The petitioner also stated: 
Recently, I was chosen as the only teacher to represent our school in a pilot program 
to improve the use of technology in Three 
high schools from the county were selected to initiate the program and the plan is to 
extend this project for the succeeding years. I am a critical member of this cutting 
edge project and it would be substantially disrupted without my contribution. 
The pilot program, as described, is a local initiative, with no indication that there was potential for 
adoption outside of . Furthermore, there is no evidence that the petitioner 
developed the pilot project or was responsible for its content. Rather, a communication from 
stated: 
supervisor of science for 
is the selected partner to implement what they call a STEM 
Innovation Cloud Pilot. Their proposal calls for targeting about 20-30 students/ 
school/class and equipping those students with devices, cloud supported storage, 
virtual classrooms and mentoring. 
We met with and the county and decided that the best way to do this would 
be to focus on a single teacher in each of your schools and covering the students in 
that teacher's class ... . These students would get devices (probably some type of 
tablet) and have access to summer camps, internships, and mentoring. The teacher 
would develop modules with assistance from our Science Office. In addition, the 
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NON-PRECEDENT DECISION 
teacher's classroom would be outfitted with the latest in technology for virtual 
learning. 
The petitioner stated: "I have a website where students check regularly to see their assignments and 
to check out videos and presentations which can help them in their review and better understanding 
of concepts." The petitioner has not shown that this use of the Internet is unusual or innovative, 
rather than a standard resource. The website's use by the petitioner's own students amounts to local 
impact, but the petitioner claims wider influence, stating: "S ome educators from various parts of the 
country have used and followed my website. There are teachers from California, New York, 
Georgia, New Mexico, Arizona, Texas, and others who have adopted some ideas from my website 
for their own classroom use." The petitioner submitted screen shot printouts from the web site, but 
no evidence that teachers around the country have adopted elements from it. 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 director issued a request for evidence on September 27, 2013. The director instructed the 
petitioner to submit evidence to establish "a past record of specific prior achievement with some 
degree of influence on the field as a whole." Regarding awards that the petitioner has received, the 
director stated that the petitioner must submit evidence to establish their significance. 
In response, the petitioner submitted materials from the College Board, showing approval of the 
petitioner's Advanced Placement (AP) physics syllabus. The petitioner asserts that "[t]his is an 
unequivocal indicator of Petitioner's exceptional ability ... because not every high school teacher 
can" develop such a syllabus. As stated above, exceptional ability, by statute, is not sufficient 
grounds for approving the national interest waiver. Because Congress has created no blanket waiver 
for AP physics teachers, the assertion that only a fraction of high school physics teachers qualifies to 
teach AP courses does not demonstrate eligibility for the waiver. Furthermore, a letter from 
principal and its AP coordinator refers to "the new curriculum proposed by the 
indicating that the petitioner would be developing a local curriculum based on the 
guidelines. The wider influence, therefore, lies with the rather than 
with any one local teacher. 
The petitioner provided additional information and evidence regarding a number of activities, most 
of them discussed previously, such as his work with the teacher's union. The petitioner did not 
establish the significance of these activities; rather, he described them and asserted that they were 
important and influential. For example, the petitioner showed that the number of followers of his 
Blog Spot web page has "increased from 150 to 245, " but he did not explain how this translates into 
impact beyond the local level. 
The petitioner repeated the claim that, as a member of the 
he "was able to give input[] towards the finalization of 
'' If this opportunity was open to all members, then it does not set the petitioner 
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apart in his field. If the petitioner significantly shaped new standards that were then broadly 
adopted, then he will have influenced his field; evidence of the opportunity to provide input is not 
evidence that the petitioner actually provided such input, or that such input actually resulted in 
significant improvements to the standards. 
Evidence accompanying the petitioner's response to the request for evidence shows the petitioner's 
involvement in national organizations, but not that the petitioner, as an individual, has contributed 
beyond a local level. 
The petitioner cited "the dire and urgent lack of STEM teachers." A shortage of qualified workers 
would be a factor in approving, rather than waiving, labor certification. See NYSDOT, 22 I&N Dec. 
at 218. As the petitioner has previously acknowledged, already obtained a labor certification 
on his behalf, which formed the foundation of a now-approved immigrant petition. The petitioner 
has not explained why it would be in the national interest to waive a requirement he has already met. 
The director denied the petition on January 9, 2014, stating that the petitioner had established the 
substantial intrinsic merit of his occupation, but not that the benefit from his employment will be 
national in scope, or that his "proposed employment would specifically benefit the national interest 
of the United States to a substantially greater degree than a similarly qualified U.S. worker." 
The director discussed the petitioner's activities, such as his participation in the aforementioned 
focus group and pilot project. The director determined that the petitioner had not shown that he has 
influenced the field, and noted that a claimed labor shortage does not warrant a waiver of the labor 
certification process which exists to address such shortages. The director cited a footnote in 
NYSDOT stating "while education is in the national interest, the impact of a single schoolteacher in 
one elementary school would not be in the national interest for purposes of waiving the job offer 
requirement." Id. at 217 n.3. 
On appeal, the petitioner submits a legal brief, asserting that the quoted passage from NYSDOT "is 
merely dictum that does not have the full force of a precedent, " and "does not squarely apply to [the 
petitioner's] proposed employment and the current Petition." The footnote in question mentioned 
teachers in the context of illustrative examples of occupations which, though beneficial, lack 
national scope. The assertion that this example "is merely dictum" does not refute its underlying 
logic or prove that the opposite is true. 
The brief cites information regarding the importance of STEM instruction. The petitioner submits 
background materials such as a transcript of President Obama's 20 14 State of the Union Address and 
a 2013 report by the U.S. Department of Education, A Blueprint for R.E.S.P.E.C.T. These materials 
do not mention the petitioner specifically. Rather, they address the general importance of education, 
and as such they concern the intrinsic merit of the petitioner's occupation. The director did not 
contest the intrinsic merit of science education, and these materials do not establish the petitioner's 
eligibility for the waiver or show that the director erred in deciding otherwise. There has been no 
finding that STEM education, as a whole, lacks national scope. The finding, rather, was that the 
(b)(6)
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Page 9 
work of one STEM teacher does not produce benefits that are national in scope. The benefit from 
STEM education is collective and cumulative. 
The brief contends that the petitioner's "employment will actually have national- potentially, even 
global - impact." The brief observes that the petitioner's students "will go on to get higher 
education and/or to work." The impact of the petitioner's former students at later stages of life will 
be theirs, not the petitioner's. If the contributions of the petitioner's former students are simply 
projections of their teacher's prior influence, then by the same logic, credit for the petitioner's 
contributions should go not to him, but to those teachers who prepared him for his career as he 
prepares his own students. 
The brief notes that the petitioner's "employment will not necessarily be confined to 
" A change of employment would not magnify or multiply the petitioner's 
impact. It would, rather, transfer his ongoing local impact from one location to another, and even 
frequent changes of employment would bring him into direct contact with only a very small fraction 
of students and schools in the United States. 
In terms of the petitioner's influence on his field, the appellate brief asserts that the petitioner's 
"remarkable grasp and presentation of his material .. . has, and will continue to, groom and propel 
students for higher learning and/or greater achievements .... [The petitioner] has made significant 
impact on his students." The petitioner's impact on his own students is not at issue in this 
proceeding; the director made no finding that teachers do not influence their own students. The 
standard in NYSDOT is influence on the field as a whole. Every competent teacher benefits the 
United States to a small degree by educating his or her students, but section 203(b )(2)(A) of the Act 
unambiguously states that foreign workers who will prospectively benefit the United States remain, 
nevertheless, subject to the job offer requirement. 
The petitioner has submitted letters from past students attesting to his impact on their lives and on 
their educational decisions. By statute, the job offer requirement presumptively applies to all 
teachers, not only to unexceptional teachers who make no impression on their students. Student 
testimonials regarding the petitioner's skills as a physics teacher have limited weight, because, while 
these students are speaking from their own experience, that experience is limited to the teachers they 
have encountered during their secondary education. Such students do not have, and should not be 
expected to have, a comprehensive understanding that would permit them to compare the petitioner 
to high school physics teachers across the country. 
The record indicates that more students at are passing the AP physics 
examination now that the petitioner is teaching AP physics there. This is an honorable achievement 
that speaks well of his skill in the classroom, but this result is confined to The 
petitioner has not shown that his work, as an individual, has had a wider impact on AP examination 
scores. The impact results from his personal involvement in the classroom, which is inherently 
limited to a small number of students each year. 
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The brief asserts that the petitioner's "exceptional abilities will help greatly improve high school 
physics curriculum and teaching methodology, and will further aid other science teachers in the 
United States into becoming highly effective educators." The petitioner has taught in the United 
States since 2005, eight years before he filed the petition and nine years before he filed the appeal. 
The petitioner has not identified any documented impact that his work has had on a national level 
during that considerable period of time. Without evidence that his work has had such impact in the 
past, the assertion that it will have such impact in the future amounts only to speculation. 
The brief identifies national organizations to which the petitioner belongs, and national-level efforts 
in which the petitioner has participated to various extents. The director did not find that these 
organizations and efforts, at the national level, lack impact or influence. The petitioner, however, 
has not shown that his involvement has had a discernible effect at the national level. For example, 
whatever the collective influence of the may be, the 
petitioner's membership in that organization does not show that he is responsible for the 
organization's policies or achievements. 
The brief repeats several previous claims that the petitioner has influenced his field through web 
sites, participation in pilot programs, and other activities he has pursued either at school or through 
professional organizations and unions. The petitioner, however, has not shown how STEM 
education, at a national level, is different as a result of these activities. The core assertion appears to 
be that, because STEM education is indisputably important, the petitioner's dedication to that field 
makes him an influential figure. The record does not contain the evidence needed to support this 
claim. 
The petitioner submits new letters in support of the appeal (as well as a copy of one previously 
submitted letter). The letters attest to the petitioner's involvement in the focus group discussed 
above; his attendance at "a two-week graduate course" at and "his significant 
participation in the County Science Fair" and involvement in the pilot project. 
states: "Maintaining America's educational prestige is dependent upon 
retaining well qualified and exceptional teachers." 
_ __.letter articulates the emphasis throughout the proceeding on the inherent, collective 
importance of well-qualified science teachers. users lacks the authority to designate blanket 
waivers based on the importance of a given occupation. See NYSDOT, 22 I&N Dec. at 217. 
Congress has the authority to create such blanket waivers through legislation, as shown by section 
203(b )(2)(B)(ii) which applies to certain physicians, but no such legislation exists for STEM 
teachers. 
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 his influence be national in scope. NYSDOT, 
22 I&N Dec. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
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the field of endeavor." Id. 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 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 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 requirement of an approved labor certification 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, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.