dismissed EB-2 NIW Case: Special Education

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Admini strative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
NO~ 2 71013 
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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)JOtadncL r 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 hnmigration 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, the petitioner seeks employment as a middle school special educator and 
hearing resource teacher. The petitioner has taught for 
since 2005. At the time of filing, the petitioner was working for 
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 with progressive post­
baccalaureate experience equivalent to an advanced degree under the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). 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. 
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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). 
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 the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit wm be 
national in scope. Id. 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. Id. 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. Id. at 219. The 
petitioner's subjective assurance that the alien 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 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. Id. 
The petitioner has established that her work as a special educator and hearing resource 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 alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien'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 alien 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-
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trained workers are available in the United States is an issue under the jurisdiction of the Department 
of Labor. !d. at 221. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 25, 2012. In Part 
4 of the Form I-140, the petitioner answered "yes" to whether any 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 July 24, 2009, to classify her as a professional under section 
203(b)(3)(A)(ii) of the Act. The Texas Service Center approved the petition on August 4, 2009, with 
a priority date of October 1, 2008. 
In a June 22, 2012 letter accompanying the petition, counsel stated that the petitioner's national 
interest waiver "is premised on her Equivalent Master's Degree in Special Education, about twenty­
four (24) years of dedicated and progressive teaching experience in Special Education, [and] the 
awards and recognitions received by her." Academic degrees, experience, and recognition for 
achievements are elements that can contribute 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 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 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 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 middle 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. 
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!d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a 
middle school 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 
teacher has influenced the special education field on a national level. At issue is whether this 
petitioner's 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, former students, 
and a parent discussing her work as a special 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. 
Dr. Principal, stated: 
I am writing this letter on behalf of [the petitioner] who teaches Hearing Impaired students 
and special education here at 
Maryland. When I came to as 
principal, I met [the petitioner]. Her passion and enthusiasm for students learning is 
priceless. She has done so much to enrich the knowledge of our scholars. She is dedicated to 
the scholars that she teaches. We appreciate the work that she strives to do each day for our 
scholars, our school, and our school community. She is an outstanding educator and a 
blessing to mankind. 
Dr. comments on the petitioner's effectiveness as an educator and her dedication to 
but he does not indicate how the petitioner's impact or influence as a middle school special 
education teacher is national in scope. In addition, Dr. fails to provide specific examples 
of how the petitioner's work has influenced the field as a whole. 
Assistant Principal, stated: 
[The petitioner] is one of the special education teachers under my supervlSlon. I have 
observed her dedication to teaching with one of the most challenged learners in the school, 
the deaf and hard of hearing class. She comes to all of the staff meetings and department 
meetings of her concerns [sic]. She attends professional developments and applies what she 
learned to make her lessons more challenging and interesting. She submits required papers 
on time. She is a very good advocate of the individual needs of her deaf and hard of hearing 
class. I saw how she engages her students in her lessons. I have been in the school for more 
than three months. Within this short period of time, I can say that the commitment and 
dedication to teach special needs students are all in [the petitioner]. It would take a lot of 
training, expertise and experience to handle these students and address their needs. [The 
petitioner] is one of the assets of the Special Education Department of 
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Ms. comments on the petitioner's activities as a teacher at and her commitment to the 
school's hearing impaired students, but does not indicate that the petitioner's work has had, or will 
continue to have, an impact beyond the students in her classroom and the local school system that 
employed her. 
Math Teacher, stated: 
I have known [the petitioner] for numerous years as a fellow staff member at 
As her special education department chairperson, I have always 
found [the petitioner] to be the consummate professional both in the classroom and in her 
other duties as a special educator. She is always prepared to meet the needs of both her 
students and their families. She also possesses a wonderful working knowledge of ... her 
content area, teaching pedagogy, and special education. 
On a personal level, [the petitioner] demonstrated all the qualities of a fine and upstanding 
citizen in terms of her honesty, integrity, and willingness to work with and help others. It is 
an honor to be acquainted with her both professionally and personally. 
Ms. speaks highly of the petitioner's professionalism, preparation, educational knowledge, and 
personal qualities, 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 middle school special educators. 
The petitioner's references praise her teaching abilities 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 all USCIS employees. See 8 C.P.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." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
USCIS 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 
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benefit sought. !d. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; USCIS 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. A _ for teaching her students "new words in sign language and 
correcting ... incorrect signs" (July 27, 2006); 
2. A · Cohort Certificate of Excellence . for outstanding 
participation and lasting contributions in 
(April 8, 2008); 
3. A Certificate of Appreciation from the ..., · for 
providing "twenty-five hours or more of mentoring support during the 2008-2009 school 
year"; 
4. A Certificate of Appreciation from the president of the Parent Teacher Association 
(PTA) during "PTA Teacher Appreciation Week" "in recognition of outstanding work in 
opening children's minds to new ideas, serving as an excellent mentor, and helping to 
create exemplary citizens" (May 19, 2008); 
5. A Certificate of Appreciation from the president of the PTA during "PTA Teacher 
Appreciation Week" "in recognition of outstanding work in opening children's minds to 
new ideas, serving as an excellent mentor, and helping to create exemplary citizens" 
(May 9, 2007); 
6. An event program from the _ _ 
listing the petitioner among scores of regional honorees within the 
system; 
7. A Teacher Recognition Certificate from the principal of for her participation in 
American Education Week (November 14-18, 2005); 
8. A Certificate of Recognition from the Chief Human Resources Officer for 
"completion of the Maryland State Department of Education requirements for Standard 
Professional Certificate and faithful commitment to serve the students of 
9. Academic records and transcripts; 
10. A "Professional Teacher" identification card from the 
11. Maryland Educator Certificates; 
12. A "Certification" of good standing from the --~------ ~~-----__J 
13. A "Report of Rating" from the stating that the petitioner 
"passed the professional board examination for teachers held in 
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14. A "Report of Rating" from the 
the petitioner's "verbal ability" was "average," her "numerical 
average," and her "analytical ability" was "below average"; and 
15. Employment verifications. 
stating that 
ability" was "below 
Again, academic records, occupational experience, professional certifications, 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 1 - 8) have more than local, regional, or institutional 
significance. There is no documentary evidence showing that items 1 - 15 are indicative of the 
petitioner's influence on the field of education at the national level. 
In addition, the petitioner 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. 
The director issued a request for evidence on December 4, 2012, 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 copies of her "satisfactory" teacher evaluations from and 
her "outstanding" ratings from the The petitioner, however, 
failed to demonstrate how the 
evaluations and ratings reflect that she has impacted the field to a 
substantially greater degree than other similary qualified special educators and teachers, and how her 
specific work has had significant impact outside of the schools where she has taught. 
The petitioner also submitted a certification from the stating 
that she interpreted Catholic "mass in sign language every Saturday at the bishops residence from 
2001 - 2005" and a Certificate of Appreciation from for her "contributions to the ESY 
[Extended School Year] Summer Program 2011," but there is no documentary evidence 
demonstrating that the petitioner's work has influenced the field of special education as a whole. 
In addition, 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 
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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 
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 virtue 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 a middle school special educator and hearing resource teacher has 
influenced the field as a whole. 
The director denied the petition on March 20, 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 any type of impact to the field on a national level." 
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 school sector." 
Counsel does not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b)(2) of the Act. Counsel identifies no specific legislative or 
regulatory provisions that exempt school teachers from NYSDOT or reduce its impact on them. The 
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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, 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 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. 
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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: 
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. 
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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. 
The petitioner has not established that the "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." Thus, the 
petitioner's 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 of and [the petitioner's] assigned school at 
The 2012 MSA 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 .... 
* * * 
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Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO targets at the "All Student" level .... 
The petitioner has worked for since 2005, 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 schools 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 1 - 8) and speaking engagements as evidence of her 
"past history of achievement." As previously discussed, the petitioner's awards are institutional, 
local, or regional in nature, and they do not show that her work has had a wider impact on the field 
of education. In addition, there is no documentary evidence demonstrating that the petitioner's local 
speaking engagements had a national impact or were otherwise indicative of her influence on 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 USCIS "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 ofOtiende, 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 
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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 she "will serve the national interest to 
a substantially greater degree than would an available U.S. worker with the same minimum 
qualifications." 
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 or nationally. 
Counsel asserts that "59% [of! special educators in the nation [hold an] equivalent Master's degree," 
and "92% [of! special educators [have] full certification." The study that counsel cited, the 
"SPeNSE: Study of Personal Needs in Special Education," did not indicate, as counsel claimed, that 
59% of United States special education teachers have a master's degree or "equivalent." Rather, as 
quoted by counsel, the study stated: "Fifty-nine percent of special educators had their Master's 
degree." While the petitioner in this proceeding took various graduate-level courses, she did not 
submit evidence that she completed a master's degree. Therefore, the information provided by 
counsel indicates that the average United States special education teacher possesses higher academic 
credentials than those of the petitioner. 
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 
October 1, 2008. 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 
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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 
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 special educators 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 that would justify 
a waiver of 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." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole"). 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.