dismissed EB-2 NIW Case: Special Education

(b)(6)
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: 
OC1 o 8 2013 
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, 
lJfJ~j{~n~ 
0Ron Rosenberg 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
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 filed on 
November 21, 2012 will be dismissed .1 
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 1-140, the petitioner seeks employment as an "Elementary Special Education 
Teacher" for ~ The etitioner has worked for 
since 2008. At the time of filing, the petitioner was teaching a~ in 
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, a report entitled "Special Education Teacher 
Retention and Attrition: A Critical Analysis of the Literature," an abstract for a report entitled 
and copies of documents previously 
submitted. 
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 Attomey General may, when the Attomey 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. 
1 The petitioner filed a separate untim ~ appeal on December 28, 2012 Both appeals related to the 
same denied 1-140 petition , The AAO rejected the untimely appeal. 
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Page 3 
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 
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). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in 
scope. Finally, the petitioner must establish that the alien will serve the national interest to a 
substantially greater degree than would an available United States worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest is not sufficient to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
The petitioner has established that her work as a special education teacher is in an area of substantial 
intrinsic ·merit. It remains, then, to determine whether the proposed benefits of petitioner's work 
would 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. !d. 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. 
The petitioner filed the Form I-140 petition on December 19, 2011. In a December 13, 2011 letter 
accompanying the petition, counsel stated that the petitioner's national interest waiver is "based on 
her expertise in the ... field as evidenced by her numerous awards and citations from a multitude of 
educational institutions here in the United States." Recognition for achievements by peers, 
governmental entities, or professional organizations is an element that can contribute toward a 
finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(F). Exceptional ability, in turn, is not 
self-evident grounds for the waiver. See section 203(b)(2)(A) of the Act. The petitioner's awards 
will be further discussed later in this decision. 
The petitioner submitted various letters of support from administrators and teachers discussing her 
work as an educator. As some of the letters contain redundant claims already 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: 
Currently, [the petitioner] is assigned as a Kindergarten/First Grade Classroom teacher in the 
Comprehensive Special Education Program at my school. [The petitioner] is a detailed­
oriented person who works diligently to provide the best instruction. She is caring and 
nurturing to her students and willing to assist her colleagues to further strengthen their skills. 
I am quite pleased she is a member of my special education team and a member of my staff. 
It is truly my intent to retain [the petitioner] for next school year. 
Ms. comments on the petitioner's personal qualities and responsibilities at 
but Ms. 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. 
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Kindergarten Chairperson, stated: 
As the kindergarten chairperson, I have grown to know [the petitioner] in a professional 
capacity and have observed her to be a true asset to our grade level team. [The petitioner's] 
knowledge resulting from staying abreast of the latest pedagogy and educational methods is 
equally matched by her strong work ethic. Her dedication to special education students 
results in her continued willingness to go beyond the call of duty, garnering the respect and 
admiration among her colleagues. Her gentle and loving spirit is well received among her 
peers and her students alike. In sum, [the petitioner] is an outstanding person both personally 
and professionally and I endorse her in any capacity. 
Ms. praises the petitioner's knowledge, dedication, and personal traits, but Ms. s 
observations do not set the petitioner apart from other competent and qualified special education 
teachers, or explain how the petitioner's work has impacted the field beyond the students at her 
school. 
Ms. -----~-· Directress, Philippines, stated: 
[The petitioner] has worked in this institution for ... 3 years as a SPED [Special Education] 
teacher. She also facilitates a Toddler Class and a 30 min. per day Reading Program for the 
Preparatory students. 
In three years that she taught here, [the petitioner] showed exemplary dedication, patience 
and initiative with regards to her classroom duties. Her relationship with her fellow faculty 
members was excellent and she showed genuine interest and concern when dealing with her 
pupils. 
I respectfully recommend her to any position commensurate with her qualifications. 
Ms. comments on the petitioner 's work at and her 
effectiveness as a teacher, but Ms. fails to provide specific examples of how the 
petitioner's work has influenced the field as a whole. 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'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 worked. 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. 
(b)(6) NON-PRECEDENT DECISION 
Page 6 
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. MatterofY-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: 
1. A Certificate of Congratulations from the administration of 
School for "Outstanding Achievement" at the school (February 5, 2009); 
2. A Certificate of Appreciation from the principal of for 
"dedication to teaching and making public schools great for every student during the 88th 
annual American Education Week (November 2009); 
3. An "Outstanding Service" certificate from the 
"for invaluable contribution in giving academic 
help to the students of o 
-in conjunction with its (November 12, 2011); 
4. An "Outstanding Service" certificate from the 
invaluable contribution in giving community service during the 
(October 1, 2011); 
5. A Certificate of Appreciation from the _ _ 
voluntary services as a Youth Council Advisor of the 
2012); 
6. A Certificate of Recognition from the 
exemplary services for the General Assembly of the 
2011); 
7. A Certificate of Excellence from the • ~ 
expertise in Handwriting Without Tears" (November 19, 2011); 
8. A Certificate of Recognition from the _ _ 
exemplary service rendered for the success of the 
"for her 
"for rendering her 
(2011-
"for rendering her 
'(November 5, 
"for sharing her 
"for his/her 
'(November 19, 2011); 
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9. A Maryland Educator Certificate; 
10. A Professional Teacher Certificate from the Republic of the Philippines; 
11. A membership card for Autism Society Philippines; 
12. A membership card for the National Organization of Professional Teachers; 
13. A Special Olympics 2011 Partner card; 
14. A membership card for the Maryland State Education Association; 
15. A Certificate of Membership for the _ 
16. A Bachelor of Science in Business Administration degree 
17. A graduation certificate from a Post Baccalaureate Program in Special Education; and 
18. Academic transcripts. 
Again, academic records, professional certifications, memberships, and recognition for achievements 
are all elements that pertain 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 the petitioner has failed to demonstrate that the 
awards she received (items 1 - 8) have more than local or institutional significance. For instance, 
the petitioner's awards from (items 1 and 2) and from the 
(items 3 - 8) reflect institutional or regional recognition for rather 
than nationally significant awards in the field of education. There is no documentary evidence 
showing that items 1 - 18 are indicative of the petitioner's influence on the field of education at the 
national level. 
The petitioner submitted certificates of participation, completion, and attendance for trammg 
courses, seminars, and workshops relating to her professional development. While taking courses 
and attending seminars and workshops 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 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 
education teachers and how her specific work has had significant impact outside of the schools where 
she has taught. 
The petitioner submitted documentation indicating that she has provided service and financial 
support for various charitable causes and organizations such as the 
but there is no documentary evidence demonstrating how this work has influenced the field of 
education as a whole. 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
The director issued a request for evidence (RFE) on June 13, 2012, instructing the petitioner to 
submit evidence to establish that her "past record justifies projections of future benefit to the nation." 
The director's RFE stated: "The petitioner must establish ... 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; a copy the Supreme Court 
decision in Brown v. Board of Education, 347 U.S. 483 (1954); Title I of the Elementary and 
Secondary Education Act; a statement by U.S. Secretary of Education Arne Duncan on the National 
Assessment of Educational Progress Reading and Math 2011 Results; and a September 26, 2011 
article in Education Week entitled "Shortage of Special Education Teachers Includes Their 
Teachers." 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, 22 I&N Dec. at 217. These assertions address only the "substantial intrinsic merit" prong 
of NYSDOT s national interest test. None of the preceding documents demonstrates that the 
petitioner's specific work has influenced the field as a whole. 
The director denied the petition on October 19, 2012. 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 benefit of her 
work as a special education teacher would be national in scope. In addition, the director stated that 
there was "insufficient evidence to demonstrate that the proposed employment of [the petitioner] 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 states: "[The petitioner's] request for waiver of the labor certification is 
premised on her Master's degree in Special Education." While the petitioner has taken some 
graduate level courses, there is no evidence showing that the petitioner holds a Master's degree in 
Special Education. 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). Regardless, an advanced 
degree is not a factor that qualifies the petitioner for a national interest waiver. The advanced degree 
is, by definition, a fundamental requirement for classification as a member of the professions holding 
an advanced degree. Section 203(b )(2)(A) of the Act subjects members of the professions holding 
advanced degrees to the job offer requirement. The national interest waiver is a benefit separate from 
the classification sought, and therefore eligibility for the underlying classification does not imply 
eligibility for the benefit of the waiver. 
Counsel asserts: "the reasoning 
behind the denial ... is a complete departure from the parameters 
elicited in the New York Department of Transportation case." Specifically, counsel states that "the 
Director is requiring more from [the petitioner's] credentials ... and tantamount to having 
exceptional ability," even though one need not qualify as an alien of exceptional ability in order to 
(b)(6)
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Page 9 
receive the waiver. As previously discussed, the requirements for exceptional ability are separate 
from the threshold for the national interest waiver. Regardless, the director did not require the 
petitioner to establish exceptional ability in her field. Instead, the director observed that the 
petitioner's evidence failed to show that her work as a special education teacher is national in scope 
and that she will benefit the national interest of the United States to a substantially greater degree 
than a similarly qualified U.S. worker. 
Citing various government efforts to improve education, counsel states: 
[T]he issue of whether the beneficiary's proposed employment as 'Highly Qualified Special 
Education Teacher' traverses the restrictive confines of physical and geographical limitation 
that normally applies to areas such as Bridge Engineer, Marine Scientist and the like. 
Here, the most tangible national benefit to be derived from a 'Highly Qualified Special 
Education Teacher' is recreating a society of responsible and values-driven citizens including 
a highly productive and well-balanced workforce that would translate the current recession 
adversely affecting the United States of America into a formidable economy again including 
national security. 
Hence . . . , the benefits that would be conferred [from the petitioner's work] spreads [sic] to 
the entire nation's economy and security. 
Counsel fails to explain how the actions of one special education teacher would contribute 
significantly to nationwide social reform, economic recovery, and security. As indicated previously, 
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. General assertions about the overall 
importance of education, and the need for education reform, do not exempt every teacher from the job 
offer requirement. As members of the professions (as defined in section 101(a)(32) of the Act), 
teachers are subject to the job offer/labor certification requirement set forth in sections 203(b )(2)(A) and 
(3)(C) of the Act. Likewise, aliens of exceptional ability who "will substantially benefit prospectively 
... the United States" are also subject to the job offer provision of section 203(b )(2)(A) of the Act. 
Congress did not create a blanket waiver for special education teachers. It is clear from the statute, 
therefore, that an alien who works in a beneficial profession such as special education is not 
automatically or presumptively exempt from the job offer requirement. 
Apart from describing the petitioner as a "highly qualified special education teacher" and stating that 
such teachers, as a group, should be exempt from the job offer/labor certification requirement, 
counsel fails to distinguish the petitioner from other qualified professionals in her field. Having first 
asserted that the director strayed from the guidelines of NYSDOT, counsel then alternatively contests 
those same guidelines, stating on page 13 of his brief: "Exclusively and strictly enforcing the 
rudiments behind the New York State Department of Transportation Case to Highly Qualified 
Teachers is unjust, unreasonable and damaging to the 'Best Interest' of the American School 
Children." Precedent decisions are binding on all USCIS employees in the administration of the 
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Page 10 
Act. See 8 C.F.R. § 103.3(c). Counsel cites no statute, regulation or case law that would require or 
permit USCIS to disregard NYSDOT as it applies to school teachers. 
Counsel cites to studies pointing to high turnover rates and inexperience among special education 
teachers. 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. This information submitted by 
the petitioner shows that there is a demand for credentialed special education teachers, a demand that 
the labor certification process can address. 
Counsel asserts that "59% [ofl special educators in the nation [hold] a Master's degree or 
equivalent," and "92% [ofl 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." Again, the petitioner in this proceeding took some graduate-level courses, but 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. Although counsel makes several references to the 
petitioner's master's degree in special education (rather than its defined equivalent), there is no 
evidence to support his claim. 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. 
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 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 providing "legal immigrant status for 'Highly Qualified Special Education 
Teachers' including [the petitioner] . . . will not only serve the best interest of American students 
with special needs but more importantly serve be [sic] 'key to the nation's economic prosperity."' 
Again, counsel does not explain how the actions of one teacher would contribute significantly to 
improving the national educational system or the U.S. economy. Congress could have created a 
blanket waiver for mathematics teachers, but did not do so. Instead, the job offer requirement 
applies to members of the professions (such as special education teachers) and to aliens of 
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exceptional ability (i.e., foreign national workers who show a degree of expertise significantly above 
that ordinarily encountered in a given field). 
Counsel contends that the labor certification process poses a "dilemma" for the petitioner because 
she possesses qualifications above the minimum required for the job she seeks. Specifically, counsel 
asserts that the petitioner's qualifications include a "Master's degree in Special Education" and 
"about 10 years of experience." 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." 
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 
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. 
* * * 
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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 allowteachers 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. 
All states offer an alternative route to certification for people who already have a bachelor's 
degree but lack the education courses required for certification. Some alternative certification 
programs allow candidates to begin teaching immediately, under the close supervision of an 
experienced teacher. 
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, does not support the claim that the labor certification process frustrates 
the NCLBA's mandate for schools to employ "highly qualified teachers." 
Counsel states that "unquantifiable factors that zero in on 'passion"' distinguish the petitioner from 
qualified United States workers and that labor certification cannot take these factors into account, 
but the 
record contains no evidence to support the claims . 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. 
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Counsel contends that, under the NCLBA, schools that fail to meet specified benchmarks will lose 
federal funding and be "abolished," thereby putting teachers out of work. 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 at 534 n.2; Matter of Laureano at 3 n.2; Matter of Ramirez-Sanchez at 506. 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, neither the Immigration and Nationality Act nor 
the NCLBA, create or imply any blanket waiver for highly qualified foreign teachers. USCIS grants 
national interest waivers on a case-by-case basis, rather than establishing blanket waivers for entire 
fields of specialization. NYSDOT at 217. 
Counsel points to the NCLBA and other government m1t1at1ves to reform and improve public 
education. Counsel asserts that national interest waiver petitions filed by school teachers should be 
considered "outside the confines" of NYSDOT. Counsel, however, does not identify any specific 
legislative or regulatory provisions in the NCLBA or in other federal statutes that exempt foreign 
school teachers from NYSDOT or reduce its impact on them. It is within Congress's power to 
establish a blanket waiver for teachers, "highly qualified" or otherwise, but no such waiver has been 
enacted. With regard to following the guidelines set fmth in NYSDOT, by 
law, USCIS does not have 
the discretion to ignore binding precedent. See 8 C.F.R. § 103.3(c). 
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. 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. In contrast, section 5 of the Nursing Relief for Disadvantaged 
Areas Act of 1999, Pub. L. 106-95 (November 12, 1999), specifically amended the Immigration and 
Nationality 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 indirectly 
implies a similar legislative change. 
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. See 
NYSDOT, 22 I&N Dec. 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
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.