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: AUG 0 1 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, 
o/t~( JJryka 11 JL 
(Ron Rosenberg 
t Acting 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" for 
The petitioner has worked for since 2007. At the 
time of filing, the petitioner was teaching at in Bowie, Maryland. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute 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, 101stCong., 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 re New York State Dept. of Transportation (NYSDOI), 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 cannot suffice 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.P.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 has established that her work as a special educator is in an area of substantial intrinsic 
merit. It remains, then, to determine whether the proposed benefits of the 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. 
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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. 
The petitioner filed the Form I-140 petitiOn on March 19, 2012. In a March 12, 2012 letter 
accompanying the petition, counsel stated that the petitioner merits the national interest waiver based 
on the petitioner's equivalent master's degree in special education, more than twenty (20) years of 
progressive teaching experience, awards and recognitions that she received as a teacher, impact on 
her special education students, improvement of United States education in the field of special 
education, and expertise in the Program. Academic 
degrees, experience, and recognition such as awards are elements that can contribute toward a 
finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii)(A), (B), and (F), respectively. 
Exceptional ability, in tum, is not self-evident grounds for the waiver. See section 203(b )(2)(A) of 
the Act. The petitioner's awards, impact on her students, efforts in improving United States 
education in the field of special education, and expertise in the Program will be further 
discussed later in this decision. 
The petitioner submitted a "Narrative Resume" discussing her background, education, and teaching 
career. Referring to herself in the third person, the petitioner described her work as a special 
educator for stating: 
In February 2007, [the petitioner] signed a 
5 year contract with 
in Maryland as a Special Educator assigned in a 
, a program designed to manage the needs of 3rct grade students 
with moderate disabilities within a self-contained setting. 
At first, she had to make adjustments to her new life at 
. However, with the support of her administrators and colleagues she was able to 
flourish and grow. She was greatly encouraged by their improvements in their academic 
skills despite the existence of moderate Learning Disabilities and Emotional Disturbance. 
Her students demonstrated progress in reading as well as in mathematics. 
Due to her school being overstaffed, she had to be placed at 
as a Special Educator in the primary grades at their 
It was here that she was exposed to severely-disabled 
students with Multiple Disabilities, Autism, Down's syndrome, and those who were 
wheelchair-bound that not only needed academic instruction but taught functional skills as 
well. She was at first apprehensive in having to work with these kinds of children because 
she had no prior exposure to them. However, as time progressed she was able to find her 
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niche as she felt it to be very fulfilling to be able to help those who had the highest level of 
need. 
* * * 
She was displaced yet again due to overstaffing and is now teaching at as a 
3rd Grade Special Educator in their program last school year until now. She was able to 
capitalize on her strengths and prior knowledge from her wealth of experience and was 
successful in making her students pass the Alternative Maryland School Assessment (Alt­
MSA), three of whom got Advanced score. Because of this, she was able to make a positive 
contribution towards the school's improved overall performance and attaining Annual Yearly 
Progress (A YP). Her talents and skills were recognized by parents and the school 
administration as they saw how the students under her care made substantive improvements. 
Because of this, she had been assigned as a Chairperson for since August of last year. 
In her statement, the petitioner did not mention the NYSDOT guidelines or explain how she meets 
them. In addition, the petitioner did not indicate that her expertise in the program and teaching 
methodologies had an influence beyond . With regard to the petitioner's 
special education work for there is no evidence establishing that the benefits of her work 
would extend beyond the classroom such that they might have a national impact. NYSDOT, 22 I&N 
Dec. at 217, n.3. 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. 
In the present matter, the benefits of the petitioner's impact as a special educator would be limited to 
students at her school and, therefore, so attenuated at the national level as to be negligible. In 
addition, the record lacks specific examples of how the petitioner's work as a speCial education teacher 
has influenced the education field on a national level. At issue is whether this petitioner's 
contributions in the field are of such unusual significance that the petitioner merits the special 
benefit of a national interest waiver, over and above 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. Id. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, teachers, and parents 
discussing her work as a special education teacher for As some of the letters contain 
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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: 
(The petitioner] is an excellent teacher at 1 and without her services, 
our students would suffer. She is a fine Special Education teacher, a supportive peer, and 
truly has the best interest of children at heart. I need her to continue serving the children 
with special needs at Her students have scored well on 
standardized tests as well. 
Her contributions to 
particular are greatly valued. 
and m 
describes the petitioner as "an excellent teacher" and comments on the need for her 
services at , but 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. 
, Assistant Principal, stated: 
[The petitioner] is a community Reference Instruction teacher who works in the 
Special Education Department at where she serves as 
chairperson. [The petitioner] has many attributes that contribute to her being a good teacher. · 
The first attribute consists of her personal qualities. She has excellent communication skills 
which allow her to communicate with her students, and build a home school connection with 
her parents. Her interpersonal skills allow her to plan collaboratively with the teachers on 
her grade level, and follow the rules to stay in compliance with the regulation of Special 
Education. Patience is a must when working with students, and [the petitioner] has a lot 
of patience, and she cares about her students. 
* * * 
Although [the petitioner] exposes her students to the county curriculum, she knows how to 
pace and modify each lesson to meet each student's IEP [Individualized Education Plan] 
needs. 
[The petitioner] i& respected and held in high esteem by her colleagues as evident by their 
confidence in her ability to represent them as chairperson. 
comments on the petitioner personal qualities and teaching skills, but it cannot suffice 
to state that the alien possesses useful skills, or a "unique background." As previously discussed, 
special or unusual knowledge or training does not inherently meet the national interest threshold. 
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The issue of whether similarly-trained workers are available in the United States is an issue under 
the jurisdiction of the Department of Labor. I d. at 221. 
Program Specialist, Special Education Department, stated: 
[The petitioner] is currently assigned as a special educator in the 
Program at in Bowie, MD, to instruct and 
support students who have significant cognitive and academic challenges. In this role, [the 
petitioner] is utilizing a repertoire of instructional strategies to differentiate instruction for the 
students who are participating in the Program. She is using these instructional strategies 
to promote positive learning results in the special education setting and to appropriately 
modify learning environments for her students. 
[The petitioner] is a knowledgeable, dedicated teacher. She is conscientious, responsible, 
and honest. More importantly, [the petitioner] has excellent human relations skills with her 
students, parents, and colleagues. As a special educator, [the petitioner] is truly a valuable 
resource to her students and their families. 
In addition, [the petitioner] is the Chairperson for the A few 
of her duties encompass ensuring that the staff meets various deadlines, assisting 
staff with improving instructional practices, and keeping staff abreast of professional 
development workshops and special education issues. She also works diligently to develop 
and maintain team rapport with all staff members to discuss academic planning, 
instructional strategies, Community Based Instruction, and modifications of materials. 
[The petitioner] has been successful in assisting her students to obtain "Advanced" scores on 
the She used the results of the 
to develop and implement individualized instruction and adjust instruction to address the 
needs of each student in her classroom. 
discusses the petitioner's work as a special educator at 
but fails to provide specific examples of how the petitioner's work has influenced the 
field as a whole . 
. Reading Specialist, Testing Coordinator, and Talented and Gifted Coordinator, 
, stated: 
It has been my pleasure to work with [the petitioner], who began her teaching at 
with confidence, knowledge and a natural ability to connect with and teach students. 
* * * 
Working with [the petitioner] throughout the school years, it quickly became apparent that 
she planned each lesson, differentiating her teaching across the curriculum. [The petitioner] 
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administered formal and informal assessments analyzing the data to guide her instruction . 
She used the county's curriculum framework and cross referenced it with the state 
curriculum flawlessly to present her students with the on grade level material needed as well 
as back mapping to reteach skills and strategies stated on the IEPs. Documented 
accommodations were implemented in daily instruction and assessments. [The petitioner] 
uses technology effectively with her teaching and gives her students opportunities to use 
instructional computer programs for reinforcement. Her ability to work with co-workers has 
proved beneficial to both staff and students. When recommendations are made based on 
learning walk observations and dialogue, the recommendations are always implemented and 
apparent in her class immediately. 
comments on the petitioner's activities as a special educator and effective use of 
technology with her students at but does not 
indicate how the petitioner 's impact or influence as a teacher is national in scope. 
In her second letter, stated: 
As the School Test Coordinator, I have worked closely with [the petitioner] throughout the 
year with the 
Her students for the 2010-2011 school year scored well due to [the petitioner's] instruction 
and thoroughness of putting the students' assessment portfolios together. Three out of her six 
students scored advanced. The others [sic] three students passed. These scores 
contributed positively to the school 's A YP (Annual Yearly Progress) . 
asserts that three out of the petitioner's six students scored advanced and her other 
three students passed the , but comments do not set the petitioner apart 
from other competent and qualified teachers, or explain how the petitioner's work has impacted the 
field beyond her students at 
Special Education Teacher at and President of the 
, stated: 
[The petitioner's] rich experience in the field of education and further studies intensified the 
kind of a teacher she is. [The petitioner] is not only efficient, she is also an effective teacher. 
As a special education teacher, [the petitioner] has a whole arsenal of strategies, strategies 
that would be appropriate for each child's unique needs. This is something that only an 
expert teacher can do. She utilizes technology, and uses variety of approaches such as 
TEACHH Method, Applied Behavior Modification, Floor Time Approach and Sensory 
Integration in teaching as she seriously believes that she is accountable for the learning that 
takes place in her class. 
Last year, all her students showed significant gains as evidenced by their performance in the 
Alternate Assessment given annually to the population that [the petitioner] works with. 
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Furthermore, [the petitioner] is an active member of 
__J Maryland chapter since 2011 up to the present. [The petitioner] is also 
active in the community at She 
volunteers to conduct free tutorial class in Math to students who are preparing for a state­
wide assessment which will take place this corning March. 
comments on the petitioner's teaching expertise and work as a special educator at 
within the system, but fails to provide specific 
examples of how the petitioner's work has influenced the field as a whole. 
Chairperson, 
~--------------
stated: 
[The petitioner] is not only efficient, she is also an effective teacher. Special education 
teachers, especially those who are called to serve those who are severely handicapped, have 
numerous challenges every single day, from toilet training, to interacting with other people, 
to coping with the academic demands of school life. [The petitioner] has a whole arsenal of 
strategies, strategies that would be appropriate for each child's unique needs .... She utilizes 
technology, uses manipulatives and other 
materials to engage her children at their level as 
she seriously believes that she is accountable for the learning that takes place in her class. 
Part of her duties is to make artifacts that will meet set of objectives and will allow her 
students to show what they know. This is a tedious task, and [the petitioner] has been able to 
demonstrate effective teaching and efficient use of time and resources to accomplish this 
herculean task. . . . Last year, all her students showed significant gains as evidenced by their 
performance in the Alternate Assessment given annually to the population that [the 
petitioner] works with. Parents who come to drop off their kids, feel that they are leaving 
their children with not only a competent teacher, but one who truly cares for their children. 
While describes the petitioner as an efficient, effective, and competent special 
education teacher, comments do not indicate how the petitioner's impact or influence 
as a special educator is national in scope . 
. Special Education Teacher, . stated: 
I have known [the petitioner] for almost 2 years. She came to _ in a later time, 
but prior to her assignment to our school, she teaches at other different schools. Her 
experiences and education intensified the kind of a teacher she is. Her excellent ideas and 
skills in developing her everyday lessons for the children made her students do great on their 
tests. 
She is also the Chairman of . As the chairman, she 
showed genuine concern to the other staffs and thoughtful in making decisions in any matters 
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that concern the group. Under her guidance, she articulates programs which are beneficial to 
students. Furthermore, she monitors these programs to assure their usefulness to students 
and to the teachers. 
comments on the petitioner's teaching experience, skills in developing lessons, and 
work as Chairman at , but fails to explain how 
the petitioner work's has impacted the field beyond her school. Regardless of the petitioner's 
particular experience or skills, even assuming they are unique, the benefit that her skills or background 
will provide to the United States must also considerably outweigh the inherent national interest in 
protecting U.S. workers through the labor certification process. NYSDOTat 221. 
parents, stated: 
We are proud parents of a 7 year old girl was born with Trisomy 21 (Down 
Syndrome). As her advocate, we have sought out the best for her. This brings us to her 
current teacher [the petitioner], we had thought about withdrawing from 
due to the fact that there was no improvement in our daughter's 
learning .... But upon meeting [the petitioner], who is now teacher, we love her 
approach to teaching. She is very involved, compared to her previous teacher. 
So we decided to try [the petitioner] out and I must say that we are very glad that we did not 
follow through with the transfer process. All facets of learning increased 
exponentially. Thanks to [the petitioner's] efforts because without a doubt, she is an asset to 
any schools she finds herself in. 
speak highly of the petitioner's interactions with their daughter and their 
comments demonstrate that the petitioner works in an area of substantial intrinsic merit. However, 
comments do not indicate how the petitioner's impact or influence as a teacher 
is national in scope. 
, Teacher, , stated: 
[The petitioner] joined our staff several years ago as a teacher in the 
program. She is always positive and effectively collaborates with teachers and 
specialists to meet the needs of her students. Children in the program have multiple, and 
often severe, disabilities which requires planning, modification of all materials, and 
alternative methods of assessment. In all instances, [the petitioner] goes above and beyond 
providing her students with the individualization that they need to be successful. 
During this time she has also gained the respect of her colleagues by being elected to the 
faculty advisory council as representative for as a member 
of the school-based leadership for the 
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comments on the petitioner's work in the program and her election to the faculty 
advisory council as representative for in the , but 
does not explain how the petitioner's work has influenced the special education field on a 
national level. 
Special Education Teacher, stated: 
In her capacity as department chair, [the petitioner] ensures that our classes have the most 
recent materials and advanced curriculum necessary to make sure no student is left behind. 
With her encouragement my peers and I continue to develop our knowledge base as well as 
attend workshops/seminars addressing the needs of students with special needs . [The 
petitioner] has proven herself to be an asset to the program, school and district. 
While 
program at 
comments on the petitioner's activities and value as department chair of the 
fails to explain how the petitioner 
work's has impacted the field beyond 
, Special Education Teacher, ----~- . -------- , stated: 
For two years, I worked and collaborated with [the petitioner] and I witness her dedication to 
her profession . Her classroom is well-structured and she uses research and evidence-based 
teaching strategies. She has been very effective with her students and I had seen them 
progress both academically and socially. 
As the designated Chairperson for this school year, 
2011-2012, [the petitioner] has demonstrated good leadership towards her team members. 
She is very supportive and accommodating. 
In addition to being an excellent teacher to students with special needs, [the petitioner] is 
active in her own neighborhood and church. She is a volunteer in the , a 
free tutorial program spearheaded by the PTA (Parent-Teacher Association) . 
praises the petitioner's skills as a special educator and comments on her 
community service work, but fails to provide specific examples of how the 
petitioner's work has influenced the field as a whole. 
, 4th Grade Special Education Teacher of stated: 
---------------------~ 
[The petitioner] has a wonderful rapport with people of all ages, especially children. Her 
ability to connect with her students and her talent at teaching simple concepts, as well as 
more advanced topics, are both truly superior. She has excellent written and verbal 
communication skills, is extremely organized, reliable and computer literate. [The petitioner] 
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can work independently and is able to follow through to ensure that the job gets done. She 
accomplishes these tasks with great initiative and with a very positive attitude. 
[The petitioner] coordinates all the activities of the Special Education section which 
includes monthly meetings, updates, field trips, special activities (Olympics, holiday 
celebrations, guest speakers) and other activities which help to run the section smoothly. 
comments on the petitioner's teaching skills and coordination of activities for the Special 
Education section, but there is no documentary evidence showing that the petitioner's work has 
impacted the field beyond . As previously discussed, 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 U.S. is an issue under the jurisdiction of the 
Department of Labor. NYSDOT at 221. 
The preceding references praise the petitioner's teaching abilities and personal character, but they 
did not demonstrate that the petitioner's work has had an impact or influence outside of the school 
where she has worked. They did 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. Id. at217 n.3. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately 
responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id: 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"). 
The petitioner submitted a January 31, 2012 article in the 
. ") entitled " 
article in 1 entitled ,. 
" and a February 9, 2012 
" but neither article specifically mentions the petitioner or her teaching 
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achievements. Nothing in the two articles sets the petltwner apart from other competent and 
qualified teachers, or explains how the petitioner's work has impacted the field beyond 
The petitioner submitted the following: 
1. A Certificate of Membership for the 
2. A Certificate; 
3. A "Certification of Good Standing" from the 
4. A Certificate of Excellence from the 
"· ' 
"for sharing her expertise m 
5. A Certificate of Recognition from the principal of the 
"Outstanding Homeroom Adviser"; 
6. A Certificate of Recognition from the principal of the 
"Best in Teaching Strategies"; 
7. A Certificate of Recognition ....1 from the principal of the 
"Most Resourceful"; 
8. A Certificate of Recognition from the principal of the 
"Best in Classroom Management"; 
9. A Certificate of Recognition from the principal of the 
"Best in Art of Asking Questions"; 
10. A Cettificate of Recognition from the principal of the 
"Best in Teaching Strategies"; 
11. A Certificate of Recognition from the principal of the 
"Classroom Management"; 
12. A Certificate of Recognition from the principal of the 
"Most Creative in Teaching"; 
13. A Certificate of Recognition from the principal of the 
"Best in Teaching 
Strategy"; 
14. A Certificate of Recognition from the principal of the 
"Best in Classroom Management"; · 
15. A Certificate of Recognition from the principal of the 
"Best in Art of Asking Questions"; 
16. A Certificate of Recognition from the principal of the ----~--
"Most Appropriate Use of Visual Materials"; 
17. A Certificate of Recognition from the principal of the 
"Most Promising Grade Level Coordinator"; 
18. A Certificate of Recognition from the principal of the 
"Outstanding Grade Level Coordinator"; 
19. A Certificate of Recognition from the principal of the 
"Best in Student- Teacher Rapport"; 
for 
for 
for 
for 
for 
for 
for 
for 
for 
for 
for 
or 
for 
for 
for 
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20. A Certificate of Recognition from the principal of the for 
"Outstanding Homeroom Adviser"; 
21. A Certificate of Recognition from the principal of the for 
"Outstanding Grade Level Teacher"; ,. 
22. A membership card; and 
23. Employment verifications from various schools where the petitioner has taught. 
Occupational experience, licenses, professional memberships, and recognition for achievements are 
all elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), (C), (E) and (F), respectively. As noted previously, exceptional ability in the 
sciences, the arts or business 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 have more than local or institutional significance. 
For instance, the petitioner's Certificate of Excellence from the 
reflects institutional recognition from the local chapter for giving a 
presentation rather than a nationally significant award in the field of education. There is no 
documentary evidence showing that items 1 - 23 are indicative of the petitioner's influence on the 
field of education at the national level. 
The petitioner submitted a copy of her 
presentation at a 
presentation and photographs of her g1vmg the 
there is no documentary evidence showing that the petitioner originated the 
petitioner's original methodologies were implemented outside of Maryland, or 
otherwise notably influenced the field. 
meeting, but 
that the 
that her work 
The etitioner submitted copies of her "satisfactory" teacher evaluations and classroom observations 
from The petitioner, however, did not submit documentary evidence indicating that she has 
impacted the field to a substantially greater degree than other similary qualified special education 
teachers. Moreover, there is no evidence showing that the petitioner's specific work has had 
significant impact outside of the schools where she has taught. 
The petitioner submitted numerous certificates of participation, completion, and attendance for 
training 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 director issued a request for evidence on September 20, 2012, instructing the petitioner to 
"submit evidence to establish that the beneficiary's past record justifies projections of future benefit 
to the nation." 
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Page 15 
In response, the petitioner submitted a November 30, 2012 letter in which she stated: 
In this 21st Century global economy, where jobs can be shipped to any place with an internet 
connection and children here in America will be competing with children around the world 
for the same jobs, a good education is no longer just one road to opportunity ... it is the only 
road! Good teachers aren't just critical for the success of our students. We are the key to 
success of our economy. With the shortage of teachers is critical to our children's future, our 
leadership in our classroom is the key to a successful economy. My knowledge about 
technology through the incorporation of the Universal Design of Learning in my daily 
instructions provides my students the opportunity to explore the different strategies and skills 
with Reading, Math and Science. 
* * * 
We, teachers are considered backbone to the nation. There would be no doctors, engineers, 
scientists, accountant, businessmen, nurses, farmers and salesladies without teachers. We 
can change the future of the society with our well-being, courageous behavior and special 
skills. 
* * * 
I have taught students in public schools, who have varied disabilities from mild to severe. 
Most have been displaying poor in language and number literacy, poor in receptive and 
expressive language. With my unique teaching skill and my exemplary connectivity in their 
classrooms and possessing a sense of purpose, I have expectations of success for all my 
students. I have seen them progressing tremendously, hence parents sent me their 
commendation and appreciation letters of what I have accomplished for their children. 
* * * 
With the new generation of outstanding leaders in the classroom like me, I can make a lasting 
impact in the lives of our young people of this nation ... America . 
The petitioner comments on "the shortage of teachers" in her field, but assuming the petitioner's 
teaching skills are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. In fact, that issue properly falls under the jurisdiction of the Department 
of Labor through the alien employment certification process. NYSDOT at 221. The petitioner also 
discusses the importance to the nation of having qualified teachers. General assertions 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. /d. at 217. Such assertions address only the "substantial intrinsic merit" prong of 
NYSDOT s national interest test. 
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The petitioner also submitted a letter from 
stating: 
'a 
NON-PRECEDENT DECISION 
parent, 
My family and I have been very fortunate enough to be working with and have [the 
petitioner] as a Special Education Teacher for our daughter, who is a special 
needs child with an intellectual delay at in Bowie, Maryland. 
As a Special Education teacher to my daughter who is currently in the first grade, [the 
petitioner] through her dedication, patience, and efforts has made tremendous strides in both 
academics and social situations with my daughter in a very short time period. 
* * * 
My daughter has been with [the petitioner] since August 2012. Since that time and being 
under [the petitioner's] care, my daughter is now able to recognize the numbers one through 
five, she has a desire to participate in classroom activities, she now tries to imitate sounds 
upon request, she completes classroom activities and our family continues to see progress 
and growth in so many areas. [The petitioner] has used strategies and techniques that are 
effective such as hand over hand, verbal prompts, picture prompts, and touch match for 
academics. In social situations [the petitioner] exercises extreme patience and a positive 
rewarding system in order to correct the behavior issues with our daughter. 
[The petitioner] communicates daily with us in regards to progress and suggests ways 
to help assist at home and in the community. I am so appreciative and thankful for [the 
petitioner]. . . . We need more teachers, special education teachers like [the petitioner]; she 
has made difference in our child and our lives. 
speaks highly of the petitioner's interactions with her daughter and her comments 
demonstrate that the petitioner works in an area of substantial intrinsic merit. However, 
comments do not indicate 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 qualified special 
education teachers. 
In a December 10, 2012 letter accompanying the petitioner's response to the director's request for 
evidence, counsel cited the No Child Left Behind Act (NCLBA) and other government initiatives to 
reform and improve public education. Counsel asserts that section 203(b)(2)(B)(i) of the Act does 
not contain clear guidance on eligibility for the waiver, and claims that Congress subsequently filled 
that gap with the passage of the NCLBA. Counsel noted 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. Counsel, however, identified no specific legislative or regulatory provisions that exempt 
school teachers from NYSDOT or reduce its impact on them. 
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Page 17 
Counsel did not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b )(2) of the Act. 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 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. 
Counsel asserted that the benefit arising from the petitioner's work is national in scope because of 
the "national priority goal of closing the achievement gap." The record, however, contains no 
evidence that the petitioner's efforts have significantly closed that gap. 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 continued: 
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 2012 MSA [Maryland State 
Assessment] Reading results show that out of the 24 Maryland school districts 
ranked near the bottom at the 'All Student' level for each MSA-covered grade level .... 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO targets .... 
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 did not explain how the 2012 MSA 
results for (which indicate low rankings relative to other Maryland school districts) establish 
that the petitioner has played an effective role in "closing the achievement gap." 
Counsel stated that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but he cited no documentary evidence to 
support that 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, counsel asserted that the petitioner 
(b)(6)
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Page 18 
has "proven success in raising proficiency of her students." While the January 20, 2012letter from 
indicates that three out of the petitioner's six students scored advanced and her other 
three students passed the ALT-MSA, there is no documentation demonstrating that the petitioner's 
work has had an impact or influence outside of or 
Counsel asserted that providing "legal immigrant status for 'Highly Qualified Special Education 
Teachers' like [the petitioner] ... will not only help improve the Education in the country but more 
importantly serve as 'key to the nation's economic prosperity."' Counsel did 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 special education teachers, but 
did not do so. Instead, the job offer requirement applies to members of the professions (such as 
public school teachers) and to aliens of exceptional ability (i.e., foreign national workers who show a 
degree of expertise significantly above that ordinarily encountered in a given field). 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the U.S. Department of Labor considers a bachelor's degree, rather than a master's degree 
and experience, to be the minimum educational requirement for a special education teacher. The 
petitioner submitted information from the Occupational Outlook Handbook describing what the U.S. 
Department of Labor considers to be the minimum qualifications necessary to become a special 
education teacher: 
Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
All states require public special education teachers to have at least a bachelor's degree. Some 
of these teachers major in elementary education or a content area, such as math or chemistry, 
and minor in special education. Others get a degree specifically in special education. 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification. 
* * * 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
(b)(6)
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Page 19 
* * * 
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. 
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. 
Counsel emphasized "the critical timeline" and "time-sensitive obligation" for hiring "Highly 
Qualified Teachers,"' and claimed that the labor certification process cannot accommodate this need 
because "[t]he United States Department of Labor minimum education requirement for Special 
Education Teacheris just a bachelor's degree." 
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. 
(b)(6)
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Page 20 
Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if 
he or she has "had certification or licensure requirements waived on an emergency, temporary, or 
provisional basis." 
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 certification process frustrates 
the NCLBA's mandate for schools to employ "highly qualified teachers." 
Counsel stated 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 does not document "closure of ... schools" for failing to meet NCLBA 
requirements, and the record does not show that the petitioner's work has brought schools 
closer to meeting the NCLBA requirements. 
Counsel further stated: 
[The petitioner] is firmly committed to teaching at However, is currently 
barred for a two-year period ... from filing any employment-based immigrant and/or 
nonimmigrant petition pursuant to the terms of a settlement agreement it had entered into 
with the United States Department of Labor arising from willful violations of the 
H-1B regulations at 20 C.F.R. Part 655, subparts Hand I. 
The U.S. Department of Labor invoked the debarment provisions of section 212(n)(2)(C)(i) of the 
Act against owing to certain immigration violations by that employer. As a result, between 
March 16, 2012 and March 15, 2014, USCIS cannot approve any employment-based immigrant or 
nonimmigrant petitions filed by 1 This debarment means that is, temporarily, unable 
to file its own petition on the alien's behalf, and thus explains why labor certification is not an option 
in the short term. The inapplicability or unavailability of a labor certification cannot be viewed as 
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the alien will 
serve the national interest to a substantially greater degree than do others in the same field. 
NYSDOT at 218 n.5. Any waiver must rest on the petitioner's individual qualifications, rather than 
on the circumstances that (temporarily) prevent from filing a petition on her behalf. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
1 The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.clol.gov/whdlimmigratiolliHlBDebarment.htm, accessed on July 26, 2013, copy incorporated into the record 
of proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
is limited to the information contained in the record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher 
in " 
The petitioner submitted public school progress reports for 
MSA Reading results for public schools; 
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); a copy of Section 1119 of the NCLBA; a statement by U.S. Secretary of Education 
Arne Duncan on the National Assessment of Educational Progress Reading and Math 2011 Results; 
a September 26, 2011 article in Education Week entitled "Shortage of Special Education Teachers 
Includes Their Teachers"; an article entitled "STEM Sell: Are Math and Science Really More 
Important Than Other Subjects?"; "Barack Obama on Education" questions and answers posted at 
www.ontheissues.org; information about STEM fields printed from the online encyclopedia 
Wikipedia; an article entitled "Special Education Teacher Retention and Attrition: A Critical 
Analysis of the Literature"; an abstract for a report entitled "SPeNSE: Study of Personnel Needs in 
Special Education"; an article in the Wall Street Journal entitled "The Importance of Math & 
Science in Education"; an article in Computer Science Technology entitled "Importance of Science 
and Math Education"; and the written testimony of Microsoft's Bill Gates before the Committee on 
Science and Technology of the United States House of Representatives (March 12, 2008). 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. 
While such arguments and information address the "substantial intrinsic merit" prong of NYSDOT s 
national interest test, none of the preceding documents demonstrate that the petitioner's specific 
work as a special educator has influenced the field as a whole. 
The director denied the petition on January 14, 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 her work as a special 
education teacher would be national in scope. In addition, the director stated the petitioner had not 
demonstrated any contributions of such unusual significance that she merits the special benefit of a 
national interest waiver. 
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 as the guiding principle 
rather than the precedent case" NYSDOT. Counsel, however, does not point to any specific 
legislative or regulatory provisions in the NCLBA that exempt foreign school teachers from 
NYSDOT or reduce its impact on them. It is within Congress's power to establish a blanket waiver 
(b)(6)
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Page 22 
for teachers, "highly qualified" or otherwise, but contrary to counsel's assertions, that waiver does 
not yet exist. With regard to following the guidelines set forth in NYSDOT, by law, the USCrS does 
not have the discretion to reject published precedent. See 8 C.P.R. § 103.3(c), which indicates that 
precedent decisions are binding on all users officers. 
Counsel further states: 
With respect to the E21 visa classification, INA§ 203(b)(2)(A) provides in relevant part that: 
"Visas shall be made available ... to qualified immigrants who are members of the professions 
holding advanced degrees or their equivalent or who because of their exceptional ability in the 
sciences, arts, or business, will substantially benefit prospectively the national ... educational 
interests, ... of the United States, and whose services in the sciences, arts, professions, or 
business are sought by an employer in the United States. 
Counsel, above, highlights the phrase "national ... educational interests," but the very same quoted 
passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are 
sought by an employer in the United States." Counsel has, thus, directly quoted the statute that 
supports the director's conclusion. 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." Neither the Immigration and Nationality Act nor the NCLBA, 
separately or in combination, create or imply any blanket waiver for foreign teachers. 
Counsel states that the director's "decision did not present even one comparative candidate having at 
least the equivalent accomplishment as that of [the petitioner] to supports its determination." 
Counsel's assertion rests on the incorrect assumption that the NYSDOT guidelines amount to an 
item-by-item comparison of an alien's credentials with those of qualified United States workers. 
The key 
provision, however, is that the petitioner must establish a record of influence on the field as 
a whole. There is no provision in the statute, regulations, or NYSDOT requiring the director to 
specifically identify other equally qualified special educators. 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 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 overall importance of closing the achievement gap 
between minority and nonminority students does not imply that any one teacher will play a 
nationally significant role by educating her students in subject areas where performance deficiencies 
exist. Again, general arguments regarding the importance of a given field of endeavor, or the 
urgency of an issue facing the United States, address only the "substantial intrinsic merit" prong of 
NYSDOTs national interest test. NYSDOT at 217. Regardless, as previously discussed, there is no 
documentary evidence showing that the petitioner has played an effective role in "closing the 
achievement gap" in or nationally. 
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Page 23 
Counsel points to the petitioner's Certificate of Excellence from the 
"for sharing her expertise in ' 
'" and her Certificates of Recognition from ( as 
evidence of her "past history of achievement." The petitioner's award from the 
is limited geographically to Filipino teachers in 
state of Maryland. In addition, the petitioner's awards from the principal at 
are local or institutional in nature and not indicative of an impact outside of that particular school. 
None of the preceding awards shows that the petitioner's work has had a wider impact on the field of 
special education. There is no documentary evidence demonstrating that any of the awards received 
by the petitioner are national in scope and indicative of her influence on the field as a whole. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. Once again, counsel's 
contention rests on the incorrect assumption that the NYSDOT guidelines amount to an item-by-item 
comparison of an alien's credentials with those of qualified United States workers. The pertinent 
eligibility factor set forth in NYSDOT, however, is that the petitioner must demonstrate a record of 
influence on the field as a whole. Such a requirement does not necessitate a review of other special 
education teachers' credentials. 
Counsel claims that "the Immigration Service is requiring more from the beneficiary's credentials 
and tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. As previously discussed, the threshold for 
exceptional ability is separate from the threshold for the national interest waiver. It remains that the 
petitioner's evidence does not facially establish eligibility for the national interest waiver. The 
director did not require the petitioner to establish exceptional ability in her field. Instead, the 
director observed that the petitioner's evidence does not show that the petitioner's work has had an 
influence beyond the schools where she has worked. 
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 15 of the appellate brief, however, counsel acknowledges that the 
statutory definition of a "Highly Qualified Teacher" requires only a bachelor's degree. Counsel does 
not reconcile these contradictory claims. 
Counsel cites to several studies pointing to a high turnover rate among special education teachers. 
As previously discussed, a shortage of qualified workers in a given field is an issue that falls under 
the jurisdiction of the Department of Labor through the alien employment certification process. 
ld. at 221. 
Much of the appellate brief consists of general statements about educational reform and discussion 
of perceived flaws in the labor certification process. The petitioner, however, has not established 
that Congress intended the national interest waiver to serve as a blanket waiver for special education 
(b)(6)
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Page 24 
teachers. It is the position of USCIS to grant national interest waivers on a case-by-case basis, rather 
than to establish blanket waivers for entire fields of specialization. !d. at 217. 
It is evident from a plain reading of the statute 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.