dismissed EB-2 NIW Case: Special Education

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 0 9 2014 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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/forms for the latest information on 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, 
)JtJe;JncL 
('Ron Rosenberg 
\ Chief, Administrative 
Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b )(2), as a member of the professions holding an advanced degree. According to 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as an 
elementary school special education teacher. The petitioner has taught for 
since 2006. At the time of filing, the petitioner was working for at 
Maryland. The petitioner asserts that an exemption from 
the requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) .. . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The record reflects 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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest 
with the alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept of Transportation, 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 she 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. ld. Finally, the petitioner seeking the waiver must establish that she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
her past record justifies projections of future benefit to the national interest. /d. at 219. The petitioner's 
subjective assurance that she will, in the future, serve the national interest cannot suffice to establish 
prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the petitioner, rather than to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The petitioner has established that her work as an elementary school special education teacher is in 
an area of substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of 
the petitioner's work will be national in scope and whether she will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. Id. at 220. Moreover, it cannot 
suffice to state that the petitioner possesses useful skills, or a "unique background." Special or 
unusual knowledge or training does not inherently meet the national interest threshold. The issue of 
whether similarly-trained workers are available in the United States is an issue under the jurisdiction 
of the Department of Labor. !d. at 221. 
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The petitioner filed the Form I-140 petition on June 28, 2012. In Part 4 of the Form 1-140, the 
petitioner did not answer the question about whether any immigrant visa petitions had previously 
been filed on her behalf. The record reflects that filed a Form I-140 petition, with an 
approved labor certification, on her behalf on September 27, 2010, to classify her as a professional 
under section 203(b)(3)(A)(ii) of the Act. The Texas Service Center approved the petition on May 
19, 2011, with a priority date of April28, 2010. 
In a June 28, 2012 letter accompanying the petition, counsel stated that the petitioner's national 
interest waiver "is premised on her Master's Degree in Special Education and more than ten (10) 
years of inspired, innovative, and progressive teaching experience in both the United States and the 
Philippines." Academic degrees and occupational experience are elements that can contribute 
toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B), respectively. 
Exceptional ability, in turn, is not self-evident grounds for the waiver. See section 203(b )(2)(A) of 
the Act. 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 individual 
seeks classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in her field of expertise. The national 
interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. 
In his letter accompanying the petition, counsel did not mention the NYSDOT guidelines or explain 
how the petitioner meets them. The record does not show how the petitioner's work will impact the 
field beyond With regard to the petitioner's teaching duties, there is no evidence 
establishing that the benefits of her work would extend beyond her elementary school students such 
that they will have a national impact. NYSDOT provides examples of employment where the 
benefits would not be national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the impact of 
an individual attorney working pro bono would be so attenuated at the national level as to be 
negligible. Similarly, 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 of section 203(b)(2)(B) of the Act. As another example, 
while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not 
be considered sufficiently in the national interest for purposes of this provision of the Act. 
!d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a 
special education teacher beyond the students at her school and, therefore, that her proposed benefits 
are national in scope. In addition, the record lacks specific examples of how the petitioner's work as a 
special educator has influenced the field on a national level. At issue is whether this petitioner's 
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contributions in the field are of such significance that she merits the special benefit of a national 
interest waiver, a benefit separate and distinct from the visa classification she seeks. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. ld. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, teachers, and parents 
discussing her work as an educator. As some of the letters contain similar claims addressed in other 
letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate 
the nature of the references' claims. 
Principal, stated: 
[The petitioner] is an active member of the School Administrative Team, School 
Improvement Team (SIT), and School Planning and Management Teams (SPMT). She is 
also the Chair of the Special Education Depmtment. [The petitioner] makes certain that our 
school's special education department is in compliance with all the policies and procedures 
as prescribed by the No Child Left Behind Act and Individuals with Disabilities Education 
Act (IDEA). She ensures that the parents understand the processes when their child is 
identified with a disability, that they understand their rights, and that the students themselves 
are given and designed the educational plan unique of their needs. Aside from these duties 
and responsibilities, she also actively supports various activities and programs of our school. 
[The petitioner] has an admirable rapport with people of all ages, especially children. Her 
ability to connect with her students and her talent at teaching simple concepts, as well as 
more advanced topics, are both truly superior. She has excellent written and verbal 
communication skills, is extremely organized, reliable and computer literate. [The petitioner] 
can work independently and is able to follow through to ensure that the job gets done. She 
accomplishes these tasks with great initiative and with a very positive attitude. 
As a new Principal to the building, [the petitioner] has been extremely instrumental in my 
transition. [The petitioner] is always available to assist her collegues [sic] and the 
administration at any time. She frequently takes time to work with classroom teachers and 
other resource teachers to ensure best practices are being implemented. [The petitioner] was 
featured in a presentation for New Leaders for her effective implementation of small group 
and Special Education instruction. 
Ms. comments on the petitioner's duties and responsibilities at 
support of school activities, communication and organizational skills, reliability, computer 
literacy, ability to work independently, capability in ensuring tasks are completed, positive attitude, 
and the assistance that the petitioner has provided to other teachers and to the school's 
administration, but does not indicate how the petitioner's impact or influence as a teacher is national 
in scope. In addition, Ms. fails to provide specific examples of how the petitioner's work has 
influenced the field as a whole. 
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Assistant Principal stated: 
As the Co-Chair of the Special Education department, [the petitioner] was assigned to work 
with sixth grade students at for academic year 2011-2012. She 
was also an active member of the School Administrative Team, School Improvement Team 
(SIT), and School Planning and Management Team (SPMT). 
[The 
petitioner] performed admirably in the aforementioned positions and was instrumental 
in providing much-needed academic support to her students. Due to her leadership and 
instructional strategies, students were able to reach their maximum achievement. 
[The petitioner] has excellent written and verbal communication skills, is extremely 
organized, can work independently, and is able to multi-task to ensure that all projects are 
completed in an efficient and timely manner. The high-level of energy she brings to assigned 
projects is contagious and motivational. 
As a team-player, [the petitioner] is always willing to offer her support and assistance to her 
colleagues. [The petitioner] enjoys a professional and positive rapport with her students and 
parents at 
Mr. points to the petitioner 's membership on various school teams, effectiveness as a 
special education teacher, communication skills, organization, ability to work independently and to 
multi-task, high-level of energy, willingness to assist colleagues, professionalism, and positive 
interactions with students and parents at but does not indicate that 
the petitioner's work has had, or will continue to have, an impact beyond her school and 
English for Speaker of Other Languages (ESOL) Teacher, 41h Grade, 
stated: 
I came to know [the petitioner] in the spring of 2010. As their new ESOL Resource Teacher 
for the fourth grade level attending to students who both need language and learning support, 
I have witnessed her immeasurable niche handling even the most complicated scenario in the 
building concerning students with learning disabilities or behaviour issues. [The petitioner] 
is such a hardworking staff and invariably understands exactly what our Special Education 
kids need. During student referral session she exudes with the solid foundations of the tasks 
and completing them efficiently and effectively. More often than not issues and concerns are 
de-escalated because of her strategies and approaches to avoid prolong existence of 
behaviour challenges. [The petitioner] indeed exhibits some good characteristics of 
independence and excellence in undertaking a variety of student cases. 
On the interpersonal side, [the petitioner] gets along extremely well with the staff under her 
supervision. She is highly respected both as a person and professional by the whole staff, 
parents, and students. 
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Ms. comments on the petitioner's effectiveness in handling students with disabilities and 
behavioral issues, independence, ability to undertake a variety of student cases, and interpersonal 
skills, but her observations fail to demonstrate that the petitioner's work has influenced the field as 
whole, or that the petitioner has or will benefit the United States to a greater extent than other 
similarly qualified elementary school teachers. 
The petitioner's references praise her abilities as a special educator and personal character, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of the schools 
where she has taught. They also do not address the NYSDOT guidelines which, as published 
precedent, are binding on allUSCIS employees. See 8 C.F.R. § 103.3(c). That decision cited school 
teachers as an example of a profession in a field with overall national importance (education), but in 
which individual workers generally do not produce benefits that are national in scope. NYSDOT at 
217,n.3. 
' 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases) . The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." ld. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. ld. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
In addition to the reference letters, the petitioner submitted 
the following: 
1. Two Maryland Educator Certificates with validity periods of "7/112008- 6/30/2013" and 
"1/112011- 12/31/2015"; 
2. A Certificate of Appreciation from the administration of 
"in recognition of ... service during the 2009-2010 school year"; 
3. A "Key to Our Success" certificate from the principal of 
(May 13, 2010); 
4. A "Certificate of Award" from the administration of 
for having "made a significant contribution to advancing the awareness of 
women's history (March 27, 2009)"; 
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5. A Certificate of Appreciation from the principal of "in 
recognition of volunteer service given during the Leadership Cares Saturday Literacy 
Program October 2009- March 2010"; 
6. A "Certificate of Appreciation" from the School Coordinator, 
-' thanking the "for Participation, 
Dedication and Contributions of Leadership at the 
'(May 21, 2010); 
7. A Certificate of Appreciation from "for Outstanding 
Performance and Lasting Contribution to ELO [Extended Learning Opportunities] After­
School Achievers" (March 11, 2009); 
8. A "Certificate of Appreciation" from the 
thanking the "for Participation, 
Dedication and Contributions of Leadership at the 
(June 1, 2007); 
9. A "Certificate of Achievement" (2006) from the County Executive of 
during American Education Week in honor of the petitioner's "service as an 
educator" in the system; 
10. A Certificate of Recognition from the Board of Education 
wishing the petitioner "a successful and productive educational experience in the 
'(September 27, 2006); 
11. A Certificate of Excellence from the Medicaid Billing Office recognizing 
"for outstanding performance in the Medicaid Billing Program First 
Quarter 2007- 2008"; 
12. A "Certificate of Appreciation" from the K-8 Instructional Supervisor, Department of 
Special Education, "in recognition of valuable contributions to the Special 
Education Department" (May 10, 2011); 
13. A "You Made the Difference" certificate from for "loyal dedication and 
unwavering commitment in taking on the responsibility of Special Education 
Chairperson" (May 25, 2012); 
14. A Certificate of Ap reciation "in recognition of the valuable contributions to 
'(May 4, 2011); 
15. A Certificate of A reciation (2011) for support of the 
16. A Certificate of Appreciation (2010) for support of the 
17. A "Parent Volunteers" award "for helping with the class of 2010 
-1 
18. A "Certificate of Appreciation" from the principal of 
for having "made a lasting contribution" to the school (June 4, 2008); 
19. Praxis Series test score report; 
20. Employment verifications; 
21. Earnings statements; 
22. Academic records and transcripts; 
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23. Membership cards for the 
24. Membership cards for the 
25. A membership card for the 
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I 
and 
Again, academic records, occupational experience, professional certifications, salary information, 
membership in professional associations, and recognition for achievements are all elements that 
relate to a finding of exceptional ability, but exceptional ability is not sufficient to establish 
eligibility for the national interest waiver. The plain language of section 203(b )(2)(A) of the Act 
indicates that aliens of exceptional ability are subject to the job offer requirement (including alien 
employment certification). Particularly significant awards may serve as evidence of the petitioner's 
impact and influence on her field, but the petitioner has failed to demonstrate that the awards she 
received (items 2 - 18) have more than local, regional, or institutional significance. There is no 
documentary evidence showing that items 1 through 25 are indicative of the petitioner's influence on 
the field of education at the national level. 
The petitioner also submitted numerous certificates of participation, completion, and attendance for 
training courses and seminars relating to her professional development. While taking courses and 
attending seminars are ways to increase one's professional knowledge and to improve as a teacher, 
there is nothing inherent in these activities to establish eligibility for the national interest waiver. 
In addition, the petitioner submitted copies of her "satisfactory" teacher evaluations from 
and a "Faculty Evaluation Form" from in the Philippines. The 
petitioner, however, failed to demonstrate how the evaluations reflect that she has impacted the field 
to a substantially greater degree than other similary qualified educators and how her specific work has 
had significant impact outside of the schools where she has taught. 
The petitioner also submitted evidence of her teaching material, student performance assessments, 
and other educational activities, but the petitioner does not explain how the submitted documentation 
demonstrates her influence on the field as a whole. 
The director issued a request for evidence on January 16, 2013, instructing the petitioner to submit 
evidence demonstrating that the benefits of her proposed employment would be national in scope 
and that she "has a past record of specific prior achievement with some degree of influence on the 
field as a whole." 
In response, the petitioner submitted President George H.W. Bush's "Remarks on Signing the 
Immigration Act of 1990"; information about Public Law 94-142; an article in Encyclopedia of the 
Supreme Court of the United States about Brown v. Board of Education, 347 U.S. 483 (1954); a 
copy of Section 1119 of the No Child Left Behind Act (NCLBA); a statement by U.S. Secretary of 
Education Arne Duncan on the National Assessment of Educational Progress Reading and Math 
2011 Results; a September 26, 2011 article in Education Week entitled "Shortage of Special 
Education Teachers Includes Their Teachers"; an article entitled "Supporting Science, Technology, 
Engineering, and Mathematics Education - Reauthorizing the Elementary and Secondary Education 
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Act"; "Barack Obama on Education" questions and answers posted at www.ontheissues.org; a report 
entitled "Special Education Teacher Retention and Attrition: A Critical Analysis of the Literature"; 
an abstract for a report entitled "SPeNSE: Study of Personnel Needs in Special Education"; an 
article in the Wall Street Journal entitled "The Importance of Math & Science in Education"; an 
article in Computer Science Technology entitled "Importance of Science and Math Education"; the 
written testimony of Microsoft's Bill Gates before the Committee on Science and Technology of the 
United States House of Representatives (March 12, 2008); information about STEM (science, 
technology, engineering and mathematics) fields printed from the online encyclopedia Wikipedia; 
and an article entitled "STEM Sell: Are Math and Science Really More Important Than Other 
Subjects?" As previously discussed, general arguments or information regarding the importance of a 
given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves 
establish that an individual benefits the national interest by vittue of engaging in the field. NYSDOT, 
22 I&N Dec. at 217. Such assertions and information address only the "substantial intrinsic merit" 
prong of NYSDOT s national interest test. None of the preceding documents demonstrate that the 
petitioner's specific work as an elementary school special education teacher has influenced the field 
as a whole. 
The director denied the petition on May 13, 2013. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director indicated that the petitioner had not shown that the proposed benefits of her 
work as a special education teacher will be national in scope. The director also determined that the 
petitioner had failed to demonstrate she "would specifically benefit the national interest of the United 
States to a substantially greater degree than a similarly qualified U.S. worker." 
On appeal, counsel asserts that "USCIS erred in giving insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 [NCLBA] as the guiding 
principle rather than the precedent case" NYSDOT. With regard to following the guidelines set forth 
in NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 
8 C.F.R. § 103.3(c). 
Counsel argues that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and claims that "[t]he obscurity in the law that NYSDOT sought to address has 
been clarified," because "Congress has spelled out the national interest with respect to public 
elementary and secondary school education" through such legislation. In addition, counsel contends 
that "the NCLB Act and the Obama Education Programs, taken collectively, provide the underlying 
context for the adjudication of a national interest waiver application made in conjunction with an 
E21 visa petition for employment as a Highly Qualified Teacher in the public education sector." 
Counsel does not support the assertion that the NCLBA modified or superseded NYSDOT and 
identifies no specific legislative or regulatory provisions that exempt school teachers from NYSDOT 
or reduce its impact on them. The unsupported assertions of counsel do not constitute evidence. See 
Matter of Obaigbena, 19 I&N Dec. 533, 534, n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3, 
n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In contrast to 
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counsel's claim about the NCLBA, section 5 of the Nursing Relief for Disadvantaged Areas Act of 
1999, Pub. L. 106-95 (November 12, 1999), specifically amended the Act by adding section 
203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. Congress not only can 
amend the Act to clarify the waiver provisions, but has in fact done so in direct response to 
NYSDOT. Counsel, however, has not shown that the NCLBA contains a similar legislative change. 
Counsel further states: 
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 substantially benefit 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, above, highlights the phrase "national ... educational interests," 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 States." By the plain language of the statute that counsel 
quotes on appeal, an alien professional holding an advanced degree is presumptively subject to the 
job offer requirement, even if that alien "will substantially benefit prospectively the national ... 
educational interests ... of the United States." Again, neither the Act nor the NCLBA create or 
imply any blanket waiver for highly qualified foreign teachers. As members of the professions, 
teachers are included in the statutory clause at section 203(b )(2)(A) that includes the job offer 
requirement. 
Counsel asserts that "Congress legislated [NCLBA] to serve as guidance to USCIS in granting legal 
residence to 'Highly Qualified Teachers."' Section 9101(23) of the NCLBA defines the term 
"Highly Qualified Teacher." Briefly, by the statutory definition, a "Highly Qualified" elementary 
school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's 
degree; and 
• has demonstrated, by 
passing a rigorous State test, subject knowledge and teaching skills 
in reading, writing, mathematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienced teachers not "new to the profession") 
demonstrates competence in all the academic subjects in which the teacher teaches based 
on a high objective uniform State standard of evaluation. 
In addition, the petitioner submitted information from the U.S. Department of Labor's Occupational 
Outlook Handbook describing the minimum qualifications necessary to become a special education 
teacher: 
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Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
All states require public special education teachers to have at least a bachelor's degree. Some 
of these teachers major in elementary education 
or a content area, such as math or chemistry, 
and minor in special education. Others get a degree specifically in special education. 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification. 
* * * 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
Requirements for certification vary by state. However, all states require at least a bachelor's 
degree. They also require completing a teacher preparation program and supervised 
experience in teaching, which is typically gained through student teaching. Some states 
require a minimum grade point average. 
Many states offer general special education licenses that allow teachers to work with students 
across a variety of disability categories. Others license different specialties within special 
education. 
Teachers are often required to complete annual professional development classes to keep 
their license. Most states require teachers to pass a background check. Some states require 
teachers to complete a master's degree after receiving their certification. 
Some states allow special education teachers to transfer their licenses from another state. 
However, some states require even an experienced teacher to pass their own licensing 
requirements. 
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The petitiOner has not established that the NCLBA's "Highly Qualified" standard involves 
requirements that are significantly more stringent than those outlined in the Occupational Outlook 
Handbook, or that a public school could not obtain a labor certification for a "highly qualified 
teacher." Moreover, the petitioner's specific level of education and experience are not required for 
"highly qualified" status under the NCLBA. 
Counsel quotes remarks made by then-President George H.W. Bush when he signed the Immigration 
Act of 1990, which created the national interest waiver: "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." Counsel interprets this passage to mean that Congress created the national 
interest waiver for "highly qualified" educators. The Immigration Act of 1990, however, was not 
restricted to the creation of the waiver. It was, rather, an overhaul of the entire immigration 
structure, creating new employment-based immigrant classifications to replace the "third preference" 
and "sixth preference" classifications previously in place. "[S]cientists and engineers and educators" 
are all members of the professions who, under the terms dictated by Congress in the Immigration 
Act of 1990 (as it amended the Act), are all subject to the job offer requirement. 
Counsel asserts that the director "erred in disregarding evidence demonstrating the national scope of 
the petitioner's proposed benefit through her effective role in serving the national educational 
interest of closing the achievement gap." The record, however, contains no evidence that the 
petitioner's efforts have significantly closed that gap in or nationally. The national 
importance of "education" as a concept, or "educators" as a class, does not establish that the work of 
one teacher produces benefits that are national in scope. NYSDOT at 217, n.3. A local-scale 
contribution to an overall national effort does not meet the NYSDOT threshold. The aggregate 
national effect from thousands of teachers does not give national scope to the work of each 
individual teacher. 
Counsel continues: 
The national priority goal of closing the achievement gaps between minority and 
nonminority students, and between disadvantaged and more advantaged children is 
especially relevant in the context o and [the petitioner's] assigned school. The 
2012 MSA [Maryland School Assessment] Reading results show that out of the 24 
Maryland school districts ranked near the bottom at the "All Student" level for each 
MSA-covered grade level .. . . 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO [Annual Measurable Objectives] targets 
at the "All Student" level .... 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
The petitioner has worked for since 2006, and thus had been there for a number of years 
before the administration of the 2012 MSA tests. Counsel does not explain how the 2012 MSA 
results for (which indicate low rankings relative to other Maryland school districts) establish 
that the petitioner has played an effective role in "closing the achievement gap." 
Counsel asserts that the petitioner "is an effective teacher in raising student achievement in STEM," 
but he cited no documentary evidence to support the claim. As previously discussed, the 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 
534, n.2; Matter of Laureano, 19 I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
In addition, while counsel asserts that the petitioner has "proven success in raising proficiency of her 
students," he did not point to specific STEM test results or other documentary evidence in the record to 
support the assertion. Regardless, there is no documentation demonstrating that the petitioner's work 
has had an impact or influence outside of the school where she has taught. 
Counsel asserts that "the Director has easily dismissed the incomparable accomplishments of [the 
petitioner]," but there is no documentary evidence showing that the petitioner's accomplishments are 
"incomparable" as claimed. Again, the unsupported assertions of counsel do not constitute evidence. 
See Matter of Obaigbena, 19 I&N Dec. at 534, n.2; Matter of Laureano, 19 I&N Dec. at 3, n.2; Matter 
of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Counsel points to the petitioner's awards (items 2 - 18) as evidence of her "past history of 
achievement." As previously discussed, the petitioner's awards do not show that her work has had a 
wider impact on the field of elementary special education, or that her work has otherwise influenced 
the field as a whole. 
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers and that users "should have 
presented its own comparable worker." The NYSDOT guidelines, however, do not require an item­
by-item comparison of the petitioner's credentials with those of qualified United States workers. 
The key provision is that the petitioner must establish a record of influence on the field as a whole. 
Moreover, there is no provision in the statute, regulations, or NYSDOT requiring the director to 
specifically identify another equally qualified school teacher. 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). 
Counsel contends that "the Immigration Service is requiring more from the beneficiary's credentials 
[ 
] tantamount to having exceptional ability," but an individual is not required to qualify as an alien 
of exceptional ability in order to receive the national interest waiver. As previously discussed, the 
requirements for exceptional ability are separate from 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 did not require the petitioner to establish exceptional ability in her field. Instead, the 
director determined that the petitioner had "not established that a waiver of the job offer and labor 
certification requirement will be in the national interest of the United States." 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Counsel states that while the NCLBA "requirements set minimum standards for entry into teaching 
of core academic subjects, they have not driven strong improvements in ... the effectiveness of 
teachers in raising student achievement." However, assertions regarding the need for educational 
reform in the United States only address the "substantial intrinsic merit" prong of NYSDOTs 
national interest test. In addition, counsel quotes a study that concluded the "Teach For America" 
program "rarely had a positive impact on reading achievement." The record, however, does not 
include a copy of the study. Once again, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena at 534, n.2; Matter of Laureano at 3, n.2; Matter of Ramirez­
Sanchez at 506. Regardless, counsel does not show that the petitioner's individual teaching efforts, 
after several years in the United States, have set her apart from other educators with regard to raising 
student achievement in PGCPS or nationally. 
Counsel asserts that "59% [of] special educators in the nation [hold] a Master's degree," and "92% 
[of] special educators [have] full certification." These numbers indicate that nearly three out of five 
special educators in the United States possess professional credentials comparable to those of the 
petitioner. According to counsel's statistics, the petitioner's credentials do not readily stand apart 
from those of most others in her field. 
Counsel cites to studies pointing to high turnover rates and inexperience among special education 
teachers. Again, the issue of whether similarly-trained workers are available in the U.S. is an issue 
under the jurisdiction of the Department of Labor. NYSDOT at 221. This information shows that 
there is a demand for credentialed special education teachers, a demand that the labor certification 
process can- and, in this instance, did- address. 
Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she 
possesses qualifications "that could not be articulated in conformity with the process regulations." 
Counsel's assertion, however, is ·not supported by the evidence in the record. As previously 
indicated, filed an Application for Permanent Employment Certification, ETA Form 9089, 
on behalf of the petitioner that was certified by the U.S. Department of Labor with a priority date of 
April 28, 2010. Moreover, the employment certificationprocess outlines the minimum requirements 
for a job opportunity. It does not preclude the employer from hiring applicants that exceed the 
minimum qualifications for the position. Regardless, the inapplicability or unavailability of a labor 
certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still 
must demonstrate that she will serve the national interest to a substantially greater degree than do 
others in the same field. NYSDOTat 218, n.5. 
Counsel contends that a waiver would ultimately serve the interests of United States teachers, 
because if schools "fail to meet the high standard required under the No Child Left Behind (NCLB) 
Law," the result would be "not only . .. closure of these schools but [also] loss of work for those 
working in those schools." Counsel, however, offers no 
specific examples of school closures and 
teacher layoffs attributable to not meeting NCLBA standards. Again, the unsupported assertions of 
counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534, n.2; Matter of 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
Laureano, 19 I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. ·In addition, counsel 
asserts that by waiving the labor certification requirement for highly qualified teachers such as the 
petitioner, "more American teachers will have ... employment opportunities" because standards will 
be met and schools will not be abolished. However, there are no blanket waivers for highly qualified 
foreign teachers. As previously discussed, USCIS grants national interest waivers on a case-by-case 
basis, rather than 
establishing blanket waivers for entire fields of specialization. NYSDOT at 217. 
A plain reading of the statute indicates that engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
The petitioner has not established that her past record of achievement is at a level sufficient to waive 
the job offer requirement which, by law, normally attaches to the visa classification sought by the 
petitioner. The petitioner need not demonstrate notoriety on the scale of national acclaim, but the 
national interest waiver contemplates that her influence be national in scope. !d. at 217, n.3. More 
specifically, the petitioner "must clearly present a significant benefit to 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"). 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. 
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 at 128. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed .