dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: MAR 2} 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petition er: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigrati on Services 
Administr ative A ppeals Office (AAO) 
20 Massachuserts Ave. , N.W. , MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigr ant Petition for Alien Work er 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 ple ase find the decision of the Administrative Appeal s Office (AAO) in your cas e. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor est ablish agency 
policy through non-pre ~ edent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you se¢k 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 Moti o n (Form l-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http:/ /www.uscis.gov /fo nns 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. 
Ron Rosenberg 
Chief , Administrative Appeal s Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b )(2), as a member of the professions holding an advanced degree. The 
petitioner seeks em loyment as a elementary special education teacher for 
, Since 2006, the petitioner has taught at 
Academy, a ::- :_:=::-::: -~~--- ' -' ·- - ··~ - '---~
11
- u- - v l-~.-1 The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the nation al 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 ~fa 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 director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degre e. 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 , 
Congre ss did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .. .. " S. Rep. No . 55, lOlst Cong ., 1st Sess. , 11 (1989). 
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Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT 
90), Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible , although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm 'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The tenn "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements , and whose benefit to the national interest would thus be entirely speculative. !d. 
The 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. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 28, 2012. In an 
accompanying introductory statement, counsel stated that the petitioner's "petition for waiver of the 
labor certification is premised on her two (2) Masters Degrees, one in Special Education and the 
other in English, authorship of three (3) books in the Philippines, Merit Awards, among others." 
Academic degrees, experience, and recognition can support a claim of exceptional ability in the 
sciences, the arts , or business , under the USCIS regulations at 8 C.P.R. §§ 204 .5(k)(3)(ii)(A), (B), 
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and (F), respectively. Exceptional ability, however, does not establish eligibility for the waiver, and 
therefore partial evidence of exceptional ability is not sufficient to show eligibility for the waiver. 
With respect to the petitioner ' s length of experience, her own resume indicates that the petitioner has 
taught elementary school students since 1973, and became a special education teacher in 2009. 
Awards and recognition can result from influential contributions to the field as a whole, but the 
petitioner must establish the significance of the awards. Counsel's introductory letter listed five 
"Awards , Merits and Recognitions ," described by counsel as follows: 
a. Outstanding Math Teacher by · dated April 
2008 for continuous excellence in planning lessons, executing instruction, and 
making the learning of mathematics a wonderful experience for the students. 
b. Certificate of Appreciation by · · ~- - - ~~ · ~ · (2010-2011) 
dated 16 June 2011. 
c. Teacher of the Month by dated 15 April 
2009 in recognition of the Self-Petitioner ' s valuable contributions to teaching the 
1
51 
grade scholars. 
d. Certificate of Recognition by Board of Education dated 
27 September 2006 recognizing the Self-Petitioner as the 2006 Philippine 
Teacher ' s Delegate . 
e. A Jetter from · ~ Certifying that the Self-Petitioner received the 
following awards during her tenure: 
1. EPA Model Teacher Award: Grade 1 School year 1989-1990 
n. EPA Model Teacher Award: Grade 2- 1st Runner up School year 1993-
1994 
111. EPA Model Teacher Award: Grade 1 School - 1
51 
Runner up year 1996-
1997 
IV. EPA Model Teacher Award: Grade School - 1st Runner up year 1997-
1998 
v. EPA Model Teacher Award: Grade 1 School year 199[9]-2000 
v1. EPA Model Teacher Award: Grade 2 School year 2000-2001 
The awards and certificates listed abov e are local in nature ; they do not establish recognition or 
impact beyond individual schools. The fourth listed certificate, which counsel claimed 
"recogniz[ed] the Self-Petitioner as the~ ," simply acknowledges 
that the petitioner was one of a number of teachers from the Philippines who began teaching at 
·~ - ~ in 2006. The body of the certificate reads: 
'· ··---- ~- - --o - -
proudly presents this 
Certificate of Recognition 
to 
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Page 5 
rthe petitionerl 
We wish you a successful and productive educational 
experience in the - · ·· ~_· __ _. 
September 27, 2006 
The "EPA Model Teacher Awards " are from the Elementary Parents ' Auxiliary at 
the private school in the Philippines where the petitioner taught from 1985 to 2006. 
From the certificate's wording, as well as its date (toward the beginning of the petitioner ' s first 
academic year with . it is evident that the purpose of the certificate was to wish the 
petitioner well at the beginning of her time at - - - - , rather than to recognize any particular 
achievements as a teacher. 
Publication provides a means to influ ence the field through dissemination of one's work , but not all 
published work is equally influential. Factors to consider include the nature of the work, the extent 
of its distribution, and evidence of its reception in the field. The petitioner is a co-author of 
Language Power Skil!Book 1, Reading Power SkillBook 1, and Handwriting for 
The reference to ' - - -~ ---- - ~-- in the third title indicates that the work is specifically for students at 
Regarding the other two books , the petitioner submitted color copies of the books' covers , as well as 
a letter from .. ...... ---- ~ - -- - · --- -· a · · · , --- ' : ._ 1\A ~-~_:• .... 
Philippines. confirmed that the petitioner "is a writer /author" of the two books , but 
provided no other information about the books. 
All three of the books are from the petitioner ' s time in the Philippines, before she began teaching 
special education. The record does not show that the petitioner has written any books on special 
education, or that she has produced any material for publication on any subject since her arrival in 
the United States in 2006 . 
Counsel stated: 
Through surpassing her local and state educational standards and leading her peers to 
do the same , [the petitioner's] influence truly goes beyond her local community to 
positively affect the national interest. The very goals that [the petitioner] so diligently 
and successfully pursues have been carved out by the United States Congress in the 
No Child Left Behind Act of 2002 (NCLB) and the Individuals with Disabilities 
Education Act (IDEA). These acts have specifically identified elementary and special 
education as critical to the future of the Unit ed States ' continuance as a global leader ; 
therefore, these acts have notably earmarked federal funds for the purpose of hiring 
and supporting highly-qualified educators , including [the petitioner] , to lead 
American students toward their future success. 
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Counsel did not identify or cite any immigration proviSions in the legislation identified above. 
Counsel's introductory statement included no mention of NYSDOT or its specific provisions. The 
overall importance of a given occupation addresses the "intrinsic merit" prong of the NYSDOT 
national interest test. The existence of federal legislation that relates to education (with no specific 
immigration provisions), however, does not establish or imply a blanket waiver for teachers. 
The petitioner submitted letters from teachers, administrators, and parents of the petitioner ' s students 
at various schools where the petitioner has worked. These witnesses praised the petitioner's efforts 
and her abilities with her students, but they did not claim or establish that the petitioner ' s work has 
had an impact beyond the schools where she worked. 
Counsel stated that the petition included " [c]opies of newspaper columns citing the Self-Petitioner's 
community service." The petitioner submitted excerpts from three newspaper articles, but none 
cited "community service " by the petitioner. One article is about a first-grade student at _ 
Academy who "wa s one of six kids chosen to appear in Christmas spots to be aired on the 
children's television . network Nickelodeon." The article included a brief quotation from the 
petitioner, not because of her community service but because she was the student's teacher. 
The most complete newspaper article submitted is from the November 1, 2007 issue of the 
~ The article's title is "Nearly 200 more teachers hired from Philippines," with the 
subtitle "This year's recruitment by county numbers almost double that of 2006." The article does 
not mention community service by the petitioner. Rather, the article showed her photograph, and 
paraphrased her comments on class size, as an example of one of the teachers that recruited 
from the Philippines. The article reads , in part: 
About 200 Filipino teachers will come to schools over the 
next 12 months as school officials attempt to lessen teacher shortages. 
Teacher vacancies- including special education short ages- have brought officials 
to the Philippines to recruit teachers over the last five years. There are more qualified 
teachers than jobs in the Philippines so _ ' personnel and school board 
members have coordinated with school systems and teacher associations there , 
arranged hundreds of interviews and brought more than 400 Filipino educators back 
to the county since 2002. 
Twenty-eight teachers recruited during the trip are slated to start in county schools 
this month, while another 170 will begin teaching in the 2008 -09 academic year. 
The county recruited 107 Filipino teachers in 2006 and 80 in 2005. Filipino teachers 
are sought because accreditation requirements are very similar to American 
requirements, officials said. 
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"We're not training the teachers in the United States, so we need to start looking at 
places where there are more teachers," said school board chairman 
who helped interview teacher candidates. "They recognize our shortages .... They 
have been very aggressive in getting us to come and recruit." 
Johnson said more than 300 candidates were screened and interviewed and 200 were 
offered a contract to teach in the second-largest school district in 
Maryland and the 17th-largest in the nation. 
A $300,000 advertising campaign aimed at filling teacher vacancies netted about 
1,000 teachers over the summer, but left 200 spots open - most of them in special 
education - when the school year started Aug. 20. The open classrooms were filled 
with substitute teachers, human resources workers said. 
Maryland universities and colleges graduate about 2,500 teachers annually. 
_ , which hires more than 1,000 new teachers every year , must 
compete with 23 other state school districts for those new teachers. 
The new hires are not expected to end the teacher shortage, as the school system loses 
about 1,000 teachers every year, school officials said. 
"There is no question that the state of Maryland does not produce enough teachers to 
fulfill the needs of __ -·-· ·-·----o 
(Dist. 1) oL 'There just aren't enough teachers." 
The third newspaper clipping is fragmentary, showing only a captioned photograph and part of the 
accompanying headline: "County's teacher shortage. " The clipping provides only part of the name 
of the newspaper, "The Enquirer-." The photograph and caption are identical to the ones that 
accompanied the Gazette Regional News article , and both clippings show the same date. Therefore , 
the two clippings appear to represent two versions of essentially the same article. 
The article quoted above indicates thaV hired the petitioner during a period of heavy 
recruitment from the Philippines, based primarily on the availability of teachers rather than on their 
superior qualifications, with a substantial majority of interviewed candidates receiving contracts. 
The article also indicated that the shortage of special education teachers is particularly acute, which 
corresponds to the petitioner ' s reassignment to special education duties several years after arriving. 
A local labor shortage is not grounds for a national interest waiver, because the labor certification 
process is already in place to address such shortages. NYSDOT at 218. USCIS records show that 
did , in fact , obtain an approved labor certification on the petitioner's behalf. That approved 
labor certification formed the basis for a Form I-140 petition that filed on June 17, 2009. 
USCIS approved that petition eight days later, on June 25, 2009, assigning it a priority date of 
September 23, 2008. The approved petition classified the petitioner as a professional under section 
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Page 8 
203(b)(3)(A)(ii) of the Act. On the more recent Form I-140 petttiOn under review here, the 
petitioner acknowledged the filing of the earlier petition but did not disclose its approval. 
The director issued a request for evidence on December 18, 2012. The director stated that the 
petitioner had met only the first (intrinsic merit) prong of the NYSDOT national interest test, because 
the petitioner's work is local in scope and the petitioner had not shown that her "work as a special 
education teacher has had an impact on the field as a whole and that her teaching techniques are 
(being] used by other schools." 
In response, counsel stated: " With the strict implementation of In the Matter of New York 
Department of Transportation, the USCIS-Texas Service Center has determined National Interest 
Waiver self petitioner teachers' evidences as insufficient and accordingly denied the applications." 
Counsel asserted that the director "has discretion to enforce said precedent, " i.e. NYSDOT. 
Following published precedent decisions is not a matter of discretio _n. Rather, such decisions are 
binding on all USCIS employees. See 8 C.F.R. § 103.3(c). Counsel stated: 
[USCIS] has legal and factual bases to approve teachers ' National Interest Waiver 
applications without offending the principles enunciated in the Matter of New York 
Department of Transportation . .. . 
Firstly, Immigration Act of 1990 (IMMACT 90) which enacted ... the 'National 
Interest Waiver " inc] uded 'educators' as among the targets of this legislation, 
specifically stated - ' 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.' 
Elsewhere in the brief , counsel clarified that the quoted language comes not from the statute itself , 
but from comments made by then-President George H. W. Bush as he signed the legislation. 
IMMACT 90 did in fact create the national interest waiver , and the president mentioned "educators " 
in his remarks , but it does not follow that a blanket waiver for educators was either the intent or the 
result of the legislation. The same statute plainly subjected professionals - including "scientists and 
engineers and educators " - to the job offer requirement. 
Counsel contended that the NYSDOT decision provided no specific definition of the "national 
interest, " and that Congress filled this void with the passage of the No Child Left Behind Act of 
2001 (NCLBA) , Pub. L. 107-110 , 115 Stat. 1425 (Jan. 8, 2002): 
Congress has in effect remarkably engraved the missing definition upon the concept 
of 'in the national interest ,' centered on the 'Best Interest of American School 
Children.' More importantly , U.S. Congress also provided the means to achieve this 
now defined ' in the national interest ,' i.e., ' Hiring and Retaining Highly Qualified 
Teachers. ' Interestingly , "NC LB Act" also specified the 'Standard of a Highly 
Qualified Teacher.' ... 
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NON-PRECEDENT DECISION 
With this, the Service now has a definite working tool in defining what is 'in the 
national interest ' including the clear standard on what qualifications must be required 
from NIW [national interest waiver] teacher self-petitioners, as mandated by No 
Child Left Behind Act of 2001. 
In discussing the NCLBA, above, counsel placed several phrases in quotation marks , but none of 
those phrases appears in the text of the NCLBA. The term "best interest," with respect to children, 
appears only in provisions relating to homeless students. The NCLBA contains no mention of the 
national interest waiver or any immigration benefits for foreign teachers, and it did not amend 
section 203(b )(2)(B) of the Act (which created the waiver). 
Counsel cited no specific language from the statute itself, its legislative history, or the implementing 
regulations to support the claim that the NCLBA "mandated " "what qualifications must be required 
from NIW teacher self-petitioners." The unsupported assertions of counsel do not constitute evidence. 
See Matter of Obaigbena , 19 l&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 
3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
With respect to counsel's claims regarding legislative intent, statutory interpretation begins with the 
language of the statute itself. Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 
552 (1990). Statutory language must be given conclusive weight unless the legislature expresses an 
intention to the contrary. lnt'l. Brotherhood of Electrical Workers, Local Union No. 474, AFL-CIO 
v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). Here, the petitioner has not established that Congress 
intended to exempt teachers from the job offer requirement, either through section 203(b )(2) of the 
Act, the NCLBA, or any other federal legislation. Congress 's only direct statement on the matter 
has been to apply, not waive, the requirement. Counsel has not supported the claim that the NCLBA 
amounts to Congress 's definitive statement on waiving the job offer requirement for " highly 
qualified teachers." 
The NCLBA did not amend section 203(b )(2) of the Act or otherwise mention the national interest 
waiver. 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 that Act, 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 established that the NCLBA indirectly implies a 
similar legislative change. 
Counsel's response to the RFE discussed other federal initiatives beyond the NCLBA. These 
programs establish that the federal government places a priority on improving the quality of 
education, but counsel did not establish that any of these programs had the express or implied result 
of changing immigration policy toward teachers. Section 203(b )(2)(A) of the Act remains in effect, 
and therefore teachers, "highly qualified" or otherwise , remain subject to the job offer requirement. 
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Page 10 
"Highly Qualified Teachers," as a class, play a significant collective role in implementing the 
provisions of the NCLBA. It does not follow, however, that every such teacher individually 
qualifies for special immigration benefits as a result, or that collective benefit justifies a blanket 
waiver for every such teacher, when the waiver otherwise rests on the specific merits of individual 
intending immigrants. 
The director, in the request for evidence, instructed the petitioner to submit additional evidence 
about her claimed awards. Counsel, in response, repeated the list of "Awards, Merits and 
Recognitions" stated (n the initial filing , without further elaboration or explanation of their 
significance. 
Counsel claimed that the labor certification process presents a "dilemma " because the petitioner's 
qualifications significantly exceed the minimum qualifications that an employer could specify on an 
application for labor certification, and "the employer cannot overstate the qualification requirement 
for the job offer nor can it tailor-fit in favor of the alien worker." Counsel also requested "equitable 
consideration" of the debarment order which, at the time of filing and at the time the petitioner 
responded to the request for evidence, temporarily prevented __ _ _ from petitioning for foreign 
workers. Counsel offered several reasons as to why the labor certification process is purported! y 
contrary to the national interest in this proceeding, but counsel did not acknowledge that the 
petitioner has already met that requirement. The debarment order, in effect from March 16, 2012 to 
March 15, 2014, did not affect the petitioner's previously approved petition from 2009. 
The director denied the petition on July 19, 2013 , stating: "At issue is not the national scope of 
'education as a whole,' but the national scope of the activities of one 'individual teacher.' The issue 
is not the cumulative impact of teachers nationwide, but the impact of the petitioner 's own 
activities." Therefore, the director concluded, the petitioner could not establish eligibility by relying 
on assertions regarding the overall importance of the field of education. The director discussed 
several witness letters and other exhibits submitted in support of the petition, but found that that 
these materials did not establish that the petitioner meets the NYSDOT national interest test. The 
director concluded that the petitioner had not established that her past work has had anything other 
than a local impact. 
On appeal, counsel repeats the claim that, by enacting the NCLBA, "the United States Congress has 
spelled out the national interest with respect to public elementary and secondary school education": 
[T]he NCLB Act and the Obama Education Programs, taken collectively , provide the 
underlying context for the adjudication of a national interest waiver application made 
in connection with an E21 visa petition for employment as a Highly Qualified 
Teacher in the public school sector. 
The obscurity in the law that NYSDOT sought to address has been clarified, at least 
with respect to questions about the national educational interest. Thus, an automatic 
application of NYSDOT's exacting standards in a national interest waiver connected 
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with a job in a public school district, without considering the wide-ranging impact of 
the NCLB Act, would be inapposite given the factual circumstances availing in 
NYSDOT and the post-NYSDOT enactment of the NCLB Act. More importantly, a 
straight-jacket [sic] application of NYSDOT constricts, instead of promoting, the 
national educational interests. In effect, therefore, the United States Congress, with 
the enactment of the NCLB Act, has preempted the USCIS with respect to the 
parameters that should guide its determination whether a job offer requirement based 
on the national educational interests is warranted. Otherwise stated, the requirement 
of a job offer or labor certificate for the occupation of Special Education Teacher in a 
public school district should be waived if it is established that the alien will 
substantially benefit prospectively the national educational interests of the United 
States, as these interests are enunciated in the NCLB Act and the Obama Education 
Programs .... 
The mandate for 'flexibility in the adjudication of NIW cases' ... must be construed 
liberally rather than strictly compared to the New York State Department of 
Transportation case. USCIS is now required by United States Congress through the 
No Child Left Behind Act of2001 ... to make it "flexible["] and thus possible rather 
than impossible in favor of the 'Best Interest of the School Children,' by granting 
waivers to 'Highly Qualified Teachers' who have already been serving the cause 
instead of requiring labor certification which may only reveal uncommitted U.S. 
workers with minimum education qualification. 
In the passage quoted above , counsel contended that a waiver is in order "if it is established that the 
alien will substantially benefit prospectively the national educational interests of the United States. " 
The plain text of section 203(b )(2)(A) of the Act, however, states: "Visas shall be made available ... 
to qualified immigrants who ... will substantially benefit prospectively the national ... educational 
interests, or welfare of the United States, and whose services ... are sought by an employer in the 
United States ." In this way, Congress specified that substantial prospective benefit to the 
educational interests of the United States is not sufficient for the waiver; an intending immigrant 
who offers such benefit must still be "so ught by an employer in the United States." The NCLBA did 
not establish a separate or lower standard for teachers. Counsel claimed that "USCIS is now 
required ... [by] the No Child Left Behind Act .. . [to grant] waivers to ' Highly Qualified 
Teachers,"' but counsel did not identify any provision of the NCLBA setting forth that requirement. 
Counsel has made numerous claims regarding the immigration consequences of the NCLBA , but, 
lacking support, those assertions have no weight in this proceeding. See Matter of Obaigbena, 
19 I&N Dec. 534 n.2; Matter ofRamirez-Sanchez, 17 I&N Dec. 506. 
Counsel states: 
The Matter of New York State Dept. of Transportation obviously is good in so far as 
NIW cases filed by Engineers are concerned but does not give justice to other 
professionals especially since the facts are definitely distinct from each other, not to 
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NON-PRECEDENT DECISION 
mention subsequent legislations intended to provide guiding principles to implement 
Immigration Act of 1990. 
The phrases "national interest" and "national educational interest" do not appear in the text of the 
NCLBA, and therefore there is no support for counsel's assertion that Congress "intended to provide 
guiding principles to implement Immigration 
Act of 1990" when it passed the NCLBA. 
Counsel contends that NYSDOT "required vague and overly burdensome evidence more fitting to the 
cause of an Engineer. USCIS is expected to stipulate clear basis for evidences requested and at least 
meritoriously rebut the evidences submitted in the initial filing and in the response to Request for 
Evidence." The beneficiary in NYSDOT was an engineer, but the guidelines in that decision are 
intentionally broad, and not restricted to engineers. Because the waiver is potentially available to 
workers in a wide range of occupations, there is no single, rigid set of specified evidentiary 
requirements; the available evidence will vary on a case-by-case basis. The director is not required 
to speculate as to how an elementary school teacher might exert widespread influence on her field. 
Rather, the petitioner must submit evidence that demonstrates such influence . Strong credentials and 
favorable performance reviews do not show influence or impact on the field. Counsel's claim that 
USCIS must "rebut " the petitioner 's previously submitted evidence implies that the petitioner's 
evidence established an initial presumption of eligibility, which is not the case. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals " make it 
"impossible" to compare the petitioner with other qualified workers , and asserts: "the USCIS-Texas 
Service Center should have presented its own comparable worker, if there be any at all, " as a basis 
for comparison against the petitioner. The NYSDOT guidelines are not an item-by-item comparison 
of an alien's credentials with those of qualified United States workers. That decision indicated that 
the petitioner must establish a record of influence on the field as a whole. !d. at 219, n.6. To do so 
does not require an invasive review or comparison of other teachers' credentials . 
After again listing the petitioner's awards and certificates , and the three workbooks that the 
petitioner co-authored in the Philippines, counsel asserts that the petitioner "has submitted 
overwhelming evidence" of eligibility, and that "the Director is requiring more from the 
beneficiary's credentials tantamount to having exceptional ability," even though one need not 
qualify as an alien of exceptional ability in order to receive the waiver. It is evident from the statute 
that the threshold for exceptional ability is below, not above, the threshold for the national interest 
waiver; it is possible to establish exceptional ability but still not qualify for the waiver. Also, the 
director did not require the petitioner to establish exceptional ability in her field. Instead , the 
director found that the petitioner's evidence failed to establish that her work has had an influence 
beyond the school districts where she has worked. 
The petitioner has not rebutted the director's finding that the petitioner has failed to meet the 
requirements spelled out in NYSDOT. Instead, counsel has contended at length that NYSDOT does 
not, or should not , apply to "highly qualified teachers ." This contention lacks legal and factual 
support and does not override the status of NYSDOT as a precedent decision or the basic provisions 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
of section 203(b )(2)(A) of the Act, which subjects professionals, including teachers, to the job offer 
requirement. As the beneficiary of an approved petition with a labor certification, the petitioner has 
already met the job offer requirement in a separate proceeding; the petitioner has not established that 
it would serve the national interest to waive that same requirement here. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. NYSDOT 
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."). 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, such as 
teaching, rather than on the merits of the individual alien. On the basis of the evidence submitted, the 
petitioner has not established that a waiver of the requirement of an approved labor certification will be 
in the national interest of the United States. 
The AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.