dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: 
NOV 2 7 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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 
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://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, 
).J_O[OLit'tL 
(' Ron Rosenberg 
0 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, the petitioner seeks employment as a "Special Education Teacher." The 
petitioner has taught for since 2007. 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 ofJob Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United 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 the alien seeks employment in an area of 
substantial intrinsic merit. ld. at 217. Next, a petitioner must establish that the proposed benefit will 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. ld. 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 an elementary school teacher and special educator 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
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 July 29, 2011. In a July 28, 2011 letter 
accom an ing the Qetition, counsel stated that the petitioner's national interest waiver is based on 
and her 
"improvement to ... United States Education more particularly in the field of Special Education." 
Academic degrees and 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 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. 
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 or the state of Maryland. 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 an 
elementary 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. !d. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, teachers, parents, neighbors, 
and church pastors discussing her work as an educator and her community service. As some of the 
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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: 
Since SY 2008-2009, I had the pleasure of directly supervising [the petitioner] as the Special 
Education Teacher here a From my direct observation of 
her teaching abilities, I know she will be an asset to the school system and the children of 
Md. 
[The petitioner] teaches students in our primary grades. Guided by the Maryland Voluntary 
State Curriculum, she delivers her lessons differentiated according to the needs and abilities 
of her students. As a member of the First Grade Team, she regularly collaborates and plans 
with her grade level team. 
[The petitioner] is well liked by students, parents and her colleagues. She is most 
appreciated for supporting schoolwide activities such as Career Day, Talent Show, 
Community Days and a variety of holiday programs. Both as an individual and a 
professional, [the petitioner] has enriched the culture of 
Dr. comments on the petitioner's activities as a teacher at 
but he does not indicate that the petitioner's work has had, or will continue to have, an impact 
beyond the students under her tutelage and the local school system that employed her. 
Reading Specialist, Paint Branch Elementary School , stated: 
I met [the petitioner] for the first time in the fall of 2007. At this time, [the petitioner] was an 
autism teacher with the primary team. She provided direct services to children of autism in 
an environment where she was the sole provider of the educational services. Presently, she 
has a first grade classroom that includes a more differentiated population that still includes 
several children of autism. 
I have personally witnessed [the petitioner] grow during the four years I have known her. 
She consistently provides stellar instruction to all of the children in her charge. She 
recognizes and implements the appropriate instruction via the County's Curriculum 
Framework Pacing Guide. I can always count on her to meet all deadlines. 
[The petitioner] has served on several of the Reading Department's committees and has 
presented herself as a true team player and vital member of our staff. She was a member of 
the Scholastic Book Fair and Reading is Fundamental Planning Committee. She helped to 
implement our African American Read-In Volunteer process and Parent Nights. 
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She often volunteers her services and her follow-through is exemplary. Her tenacity shines 
through whether she is working with the children or our peers. She has been a vital asset to 
the Paint Branch family. 
Ms. comments on the petitioner's effectiveness as an educator and involvement with 
school activities, but does not indicate how the petitioner's impact or influence as an elementary 
school 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. 
Dr. Instructor, stated: 
I have been [the petitioner's] instructor for several courses m the Master's program at 
* * * 
[The petitioner] is a special education instructor and she works with autistic children and 
general education children. Presently our country has a shortage of special education 
teachers ... and we are in dire need of qualified persons to fill positions such as these. I am 
very pleased to see that [the petitioner] took so naturally to this field of study. 
Dr. asserts above that there is a "shortage" of qualified special education teachers in the 
United States. As the alien employment certification process was designed to address the issue of 
worker shortages, a shortage of qualified workers in a given field does not establish eligibility for the 
national interest waiver. 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. 
. a parent whose child was taught by the petitioner at 
School, stated: 
[The petitioner] was my son's First Grade Special Education Teacher in 
Maryland. [The petitioner] displayed the unique qualities of a teacher that loves 
what she does. Qualities such as patience, understanding, innovativeness, concern, personal 
care and attention to the welfare of students are not learned behaviors. Instead they come 
from the heart, and I was able to observe those special qualities in her which were showered 
on my son on a daily basis. 
* * * 
Prior to the beginning of the school year, she reached out to me to set up a 
parent/teacher/student meeting at my home. I was very impressed with that personal 
approach. This also continued after the Christmas holidays prior to the re-opening of school. 
It was her way of showing her love and care toward my son and his well-being. I know that 
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she did that for the students in her class that were under her perview [sic]. She was also able 
to adapt the curriculum to meet the needs of my son, and sent home daily progress reports. 
During the year that [the petitioner] was my son's teacher, she was always a telephone call 
away. 
[The petitioner] is continually keeping abreast with new teaching techniques as she continues 
to increase her repertoire of teaching strategies. Her decision to continue her graduate 
studies in Special Education exemplifies her dedication to her work. She is thus able to 
impart new technologies and strategies in the classroom. 
Ms. speaks highly of the petitioner's teaching qualities, describes her interactions with the 
petitioner, and comments on the petitioner's continuing education. While Ms. comments 
indicate that the petitioner works in an area of substantial intrinsic merit, 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 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.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." !d. 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. 
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 
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: 
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1. A membership certificate and a membership card for the 
-2. Degrees and academic transcripts; 
3. A Maryland Educator Certificate; 
4. A l -5. A "Certification of Good Standing" from the 
6. Employment verifications; 
7. A Certificate of Recognition from the administration of the 
petitioner's employer from June 1999- May 2004, "for having been chosen as Recipient 
of a Bronze Certificate for 'Excellent Obedience- Class Award' in Grade One School 
Year 
2002 to 2003"; 
8. A Certificate of Participation for "outstanding participation with the development of 
(May 27, 2011); 
9. A certification stating that the petitioner "has met the requirements to qualify as a Lay 
Teacher/Trainer in the 
10. A Certificate of Appreciation "for faithfully serving in the Vacation Bible School at 
11. A Certificate of Appreciation from the Maryland Chapter of the 
"for leading the 
Community Clean-Up at '(July 12, 2011); 
m Comprehensive 
12. A Certificate of Appreciation from the Maryland Chapter of the "for rendering her 
voluntary services as cultural director of the Youth Council" (July 2, 2011); 
13. Two Certificates of Membership for the Maryland Chapter of the 
14. A Certificate of Appreciation from the Maryland Chapter of the 
resource speaker at the 
(June 26, 2011); 
15. A Certificate of Recognition from the Maryland Chapter of the 
as SPEAKER in the Maryland Chapter Summer Camp 
' in July 2010; 
for serving "as 
for "participation 
held at 
16. A Certificate of Appreciation from the Maryland Chapter of the "for volunteering 
in teaching students with autism every Saturday from January to March of 2011"; and 
17. A Certificate of Appreciation from the Maryland Chapter of the "for her 
contribution in held on the 2nd day 
of October, 2010." 
Again, academic records, occupational experience, professional certifications, 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 warrant 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 
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the petitioner has failed to demonstrate that the awards she received (items 7, 8, 10- 12, 14- 17) 
have more than local, regional, or institutional significance . There is no documentary evidence 
showing that items 1 - 17 are indicative of the petitioner's influence on the field of education at the 
national level. 
The petitioner submitted copies of her "satisfactory" teacher evaluations from 
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 special 
educators and teachers, and how her specific work has had significant impact outside of the 
elementary school where she has taught. 
In addition, the petitioner submitted numerous certificates of parttctpation, 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 petitioner submitted documentation indicating that she has provided service and support for 
various charitable causes, community events, and Christian ministries, but there is no documentary 
evidence demonstrating that petitioner's work has influenced the field of education as a whole. The 
petitioner also submitted photographs and other materials that document the petitioner's career and 
teaching activities, but they do not address the NYSDOT guidelines. 
The director issued a request for evidence on April 4, 2012, instructing the petitioner to submit 
evidence to establish that the benefits of her proposed employment "will be national in scope" and 
that she "will serve the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications." 
In response, the petitioner submitted a report entitled "Special Education Teacher Retention and 
Attrition: A Critical Analysis of the Literature"; information from the U.S. Department of Labor's 
Occupational Outlook Handbook regarding the "Job Outlook" for Special Education Teachers; a 
report from the President's Commission on Excellence in Special Education entitled "A New Era: 
Revitalizing Special Education for Children and Their Families"; an article in Encyclopedia of the 
Supreme Court of the United States about Brown v. Board of Education, 347 U.S. 483 (1954); 
information about Public Law 94-142; and a report entitled "SPeNSE: Study of Personnel Needs In 
Special Education." 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 alien benefits the national interest by virtue of engaging in 
the field. NYSDOT at 217. Such assertions and information address only the "substantial intrinsic 
merit" prong of NYSDOTs national interest test. None of the preceding documents demonstrate that 
the petitioner's specific work as an elementary school teacher and special educator has influenced 
the field as a whole. 
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The director denied the petition on March 6, 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 are national in scope. The director also determined that the 
petitioner had failed to demonstrate that her past contributions have been substantially greater than those 
of others in the field. 
On appeal, counsel asserts that "USCIS erred in g1vmg 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.P.R. § 103.3(c). 
Counsel notes 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 
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. 
Because Congress not only can amend the Act to clarify the waiver provisions, but has in fact done 
so in direct response to NYSDOT, counsel has not 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. 
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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 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. 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 .... 
* * * 
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 .... 
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The petitioner has worked for since 2007, 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 fo (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 systems where she has taught. 
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 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 she "will serve the national interest to 
a substantially greater degree than would an available U.S. worker with the same minimum 
qualifications." 
Counsel asserts 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-
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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 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 address. 
Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she 
possesses qualifications above the minimum required for the job she seeks. Counsel states that the 
labor certification guidelines "require only a bachelor's degree," and therefore "may not meet the 
objective of employers to hire highly qualified teachers pursuant to No Child Left Behind." On page 
13 of the appellate brief, however, counsel acknowledges that the statutory definition of a "Highly 
Qualified Teacher" requires only a bachelor's degree, state certification, and subject matter 
expertise. 
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: 
Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
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. 
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, therefore, did not support the claim that the labor cettification process frustrates 
the NCLBA's mandate for schools to employ "highly qualified teachers." 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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. Again, 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 .