dismissed EB-2 NIW Case: Special Education

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U.S. Department of Homeland Security 
:u .S. Citizenship and Immigrat ion Services 
Admini strati ve Appeals Office (AAO) 
20 Massachus ettsAve ., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
APR 0 8 2013 
OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: , Immigrant Petition for Alien Worker as a Member ·of the Professions Holding ·an Advanced 
Degr~e 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) , , I 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returrted to the office that originally decided your case. Please be advised that 
any further inquiry that you might have c~ncerning your case must be made to that office. 
If you believe . the AAO inappropriately applied the law in reaching its decision, or you have additional 
1 information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form. I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific 1requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. . . I 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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www.usds.gov 
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DISCUSSION: The Director, Texas Service. Center, denied the employment-based immigrant visa 
petition. The matter;is now before. the Administrative Appeals Office (AA.-0) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) 'of the Immigration and Nationality Act (the 
Acf), 8 U.S.C. § ll53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks .~mployment as a special education science and math teacher for 
<- . Most recently, the petitioner taught at 
Maryland, until his H-IB noniinmigrant status expired on July 31, 2011. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national illterest 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 requiremeritofajob offer would be m' the national interest ofthe 
. United States. 
On appeal, the petitioner submits a brief from counsel and statistics about the test performance of 
PGCPS students. 
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 1n the United States.· 
(B) Waiver of Job Offer-
(i) · ... the Attorney G{meral 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 de&ee .. T~e sole issue in contention is wh~ther the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
I. ' , . • 
Neither the. statute nor the pertirlent regulations defme the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
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. . . 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by · 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations impleme.nting the Immigration Act of 1990, published at 
56 Fed. Reg. 60897,.60900 (November 29, 199i), states: 
The SeFice .[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] st~dard must make a showing 
significantly ·above that necessary to prove the "prospective national -benefit" 
[r~quired of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exen;tption from, or waiver of, the job offer will be in the 
national futerest. Each case is to be judged on its own merits. · · 
In reNew York State Dept. of Transportation (NYSDO'I); 22 I&N Dec. 215 (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 tl:te alien seeks employment in an area of substantial 
' I ' 
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 d~gree 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 offuture benefit to the national interest. The petitioner's 
subjective assuranc~ that the ali~n 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, ratherthan 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 AAO,also notes· that 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 petition on January 13, 2012. In an accompanying statement, 
counsel stated that the petitioner seeks the waiver · 
· based on his expertise in the said field as evidenced by his Masters of Arts in 
Teaching-Special Education. Aside from this, [the petitioner's] mastery on teaching 
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Special Education is established by the numerous awards and contests received and 
won by him,.respectively .... 
Furthermore, what makes [the petitioner's] request for National Interest Waiver even 
more meritorious is his selfless col.111Tiitment to further uplift his current teaching 
vocation .at in Ma~yland; where he is well-loved by her 
. [sic] superiors, peers and students alike; his six (6) years of professional H-1B · 
engagement as a Special Education teacher, his· numerous awards, recognitions, and 
the testimonials on his behalf comprise the totality of circumstance underpinning his 
very mission to serve America. . 
(Counsel's emphasis.) The petitioner's resume and a transcript reproduced in the record indicate 
that he earned his master's degree at , Philippines, between July 
· 2010 and March 2011. The petitioner was employed in Maryland during that· same period. 
A section of the record marked "Outstanding Contributions in the United States" includes 
certificates, reports, · and other documents relating to student performance and the petitioner's 
participation in various programs. Sqme of the docl:lments included: 
.) 
• 
• 
' ' 
Results frotri the 2005-2006 Florida Comprehensiv~ Assessment Tests, showing \hat 
nearly all of the petitioner's students at showed 
improvement. . . 
An ~lectronic mail meSSi!ge from a science instructional coach at Teacher I 
Leadership and Professional Development Office to the petitioner and eight other 
teachers, congratulating them on a 7.6 point increase in Maryland School Assessment 
(MSA) scores. 
• 2010 Performance Report, showing overall improvement in 
MSA proficiency levels from 2009 to· 2010, and indicating that the school met the 
2010 Adequ~te Yearly Progress goals in every category, including special education.· 
•· Summary reports from the 2011 MSAs at providing 
statistical results but not stating whether or not the school met the Adequate Yearly 
Progress goals in special education. The report does not indicate that the school met 
· 'the Annual Measurable Objective (85.8% of students scoring at the Proficient or 
Advanced le,vels in Reading, 78.6% doing so in Math) for the ·year. The numbers in 
the Special E~ucation category were among the lowest shown. 
' ' 
, The petitioner· did not submit evidence comparing his individual performance with other teachers, 
and none of the materials described above sho·w th~t the petitioner's work has had significant impact 
. outside of the schools w}lere he has taught or will continue to do so in the future. 
,. The petitioner documented his participation in an. Exchange Visitor Program in Olongapo City, 
Philippines, on the subject .of'.'Integrating ·Guided Reading in Science Using Target Reading Skills." 
A certificate iri the record indicates that, by returning to the Philippines in 2008 to participate in this 
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program, the petitioner ','satisfactorily conducted the Proposed Alternative to the Two-year Home­
Country Physical Presence Requirement" (a reference to the petitioner's former status as a J-1 
. nonimmigrant exchange visitor). "Before his initial travel 'to the United States, the petitioner had 
worked at various schools in Olongapo City. The record does not .indicate the effect that this 
presentation had on education in the Philippines, or that the petitioner has engaged in similar 
activities in the United States that have yielded national (rather than local) benefits (such as 
introducing original; new teaching techniques that are then widely implemented). 
A section of the record marked "Awards" included photographs and copies of various certificates. 
· Examples include: 
• \A March 2l, 2004 "Certification" from the ~ ~ 
Olongapo City, stating that the petitioner "is rated OUTSTANDING as SPED 
[Special Education] teacher for the last five years and was the recipient of the 
following awards: 
1. Finalist, Outstanding SPED Teacher of the Philippines, Nov. 26, 2002. 
2. Regional Winner, Outstanding SPED Teacher, Oct. 2002 
3. Division Winner, Outstanding SPED Teacher, July 2002." 
• ·Materials indicating that the petitioner was the advisor of a student on the second­
place team at the 1999 Young Scientists Quiz, Manila, Philippines. ·He also served as 
·an advisor in other years. 
• Documents showing that the _ .vas "Second 
Runner Up" in the "Non-Central Category" for "the regional evaluation on the Search 
for the Mo~t · Effective Public Elementary School in Mathematics and Science" in 
October 2004. 
(Emphasis in original.). The record contains no evidence of similar accolades in the United States, 
where th'e petitioner taught. for six years before filing the petition. Many of the awards reflect 
achievements by mdividual students or teams of students, for whom the petitioner served as an 
advisor. The petitioner did not establish the extent to which his efforts, rather than those of the 
students, determined the outcome of the awards. A significant exception is the "Outstanding SPED 
Teacher of the Philippines," which clearly centers on the teachers rather· than their students. The 
petitioner, however, submitted no other information about the competition, such as the number of 
fmalists or the criteria for divisiomil, regional or national honors .. These factors are crucial when 
determining the significance of the awards. The AAO notes that, under the USCIS regulation at 
8 C.F.R. § 204.5(k)(3)(ii)(F), institutional recognition .of this kind can form part of a successful 
· claim of exceptional ability,. but other types of evidence would also be necessary. Aliens of 
exceptional ability, in tum, are normally subject to the job offer requirement at section203(b)(2)(A) 
. of the Act. If awards, by themselves, cannot suffice to show exceptional ability, then it stands to 
reason that they do. not inherently establish eligibility for the added benefit of the waiver. Without 
evidence to show the importance of the award and how the petitioner received it, the award does not 
qualify him for the waiver. 
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The petitioner submitted copies of favorabi~ evahiaHbns, and numerous letters from administrators, 
teachers and former students, all attesting to the petitioner's skill and accomplishments as a teacher 
but none of them showing impact or influence on a national scale. 
On June 25, 2012, the director issued a request for evidence (RFE), stating that the petitioner "must 
be able to demonstrate ... a degree of influence on the field which distinguishes [the petitioner] 
from other . Science/Mathematics Special · Education Teachers with comparable ac~demic or 
professional qualifications." 
In response, counsel. listed the awards submitted previously, and stated that the "awards and 
recognitions are difficult to ignore as solid evidence of[the petitioner'·s] competency to influence the 
improvement of Special Education with concentration in Science in the United States of America." 
By the time counsel made this claim, the petitioner had been teaching in the United States for six 
years- a span of time longer than the period (1999-2004) covered by the submitted awards- but the 
petition submitted no evidence that the petitioner had, in fact, "influence[ d] the improvement of 
Special Education with concentration in Science in the United States of America." In the absence of 
such evidence, it is not persuasive to assert that, given the achievements in the petitioner's more 
distant past, he is bound to improve education in the United States eventually. 
Counsel asserted that a waiver today will serve the needs ofUnited States workers in the long run, 
because the petitioner will educate students who, themselves, will eventually become United States 
workers who are protected by labor certification. That protection, however, extends to United States 
workers who are already teachers now, despite counsel's repeated attempts to claim that teachers, 
unlike other United States professionals, should not receive that benefit. Counsel seems, at times, to 
imply that labor certification would r~quire to hire the least qualified applicant, which is not 
an accurate portrayal of the process. Counsel acknowledged that the majority of teachers hold 
master's degrees, in which case recruitment efforts would r.ot be limited to teachers who hold only 
bachelor's degrees.· Likewise, counsel cited a study indicating that "92 percent" of special education 
teachers are "fully certified for their main teaching assignment." Rather than recognize that this 
statisti~ shows that the overwhelming majority of special education teachers hold such certification, 
counsel cast it in a negative light by observing that 92 percent is slightly lower than the 95 percent 
certification figure for "general educators." This three percent difference does not establish; imply 
or demonstrate that the petitioner, as an individual, meets the NYSDOT guidelines to qualify for a 
national interest waiver of the statutory job offer requirement. 
Counsel claimed that the labor certification process poses a "dilemma" for the petitioner because he 
possesses qualifications above the bare minimum required for the job he seeks, and therefore "the 
United States Department of Labor would ... most likely recommend denial of the application" for 
labor certification. Labor certification is not limited to workers whose qualifications exactly match 
the . minimum qualifications for a given job. . Furthermore, the waiver must serve the national 
interest. Counsel's unsupported and speculative claim that the petitioner "most likely'' could not 
receive an approved labor certification does not establish or imply that a waiver would serve the 
national interest. 
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Counsel stated that f'unquantifiable factors that zero in on 'passion'" distinguish the petitioner froin 
qualified United States workers. This unprovable assertion attempts to sidestep, rather than meet, 
the ~·national scope" prong of the NYSDOT national interest test. The director did not assert that the 
petitioner is unqualified to work as a teacher for Rather, the petitioner has sought an 
additional immigration benefit (the national interest waiver) beyond the basic immigrant 
classification, and the director found that the petitioner had not submitted sufficient evidence to 
. qualify for that additional benefit. Many of counsel's core assertions rest on the false premise that 
NYSDOT does not, or should not, apply to school teachers. 
Counsel stated that the petitioner "has already been tested by the school and has proved his worth and 
effectiveness to the American special education students." By counsel's logic, the labor certification 
requirement should not apply to any foreign worker who is already working in the United States as a 
nonimmigrant, because the employers of all such workers have found them worthy of employment. 
Counsel cited a study showing that special education teachers "shift careers" and move to general 
education, and therefore "[t]he protection afforded for US workers enshrined in the labor certification 
process will not in any way be jeopardized by grant of waiver in favor of' the petitioner. The statutory 
standard is that the waiver will serve the national interest, and counsel's observation does not address 
that standard. 
Counsel asserted that the waiver would "immediately meet both practically and theoretically the 
policy behind No Child Left Behind {NCLB) Law." Counsel later expands upon this line of 
reasoning on appeal, and the AAO will address the claims in that context. . 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." While 8 C.F.R. § 103.3(c) provides that AAO 
precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding . . Furthermore, counsel has furnished 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 mefit the same outcome is unwarranted. 
The petitioner submitted additional photographs, certificates, evaluations, test results and other 
materials reflecting or resulting from his teaching work. The petitioner stated that he "consistently 
raised scores of[his] Special Education/Regular students in Science from 2007-2012," but he did not 
show that his achievements in this regard set him apart from other teachers in his specialty. The 
rec~rd showsthat federal guidelines call for improved proficiency figures every year. The petitioner 
identified the "interventions that helped [his] students attain significant gains in MSA" scores, but 
did not claim to have developed or significantly improved upon those interventions. Mastery of 
existing techniques already in use does not qualify the petitioner for the waiver. Special or unusual 
knowledge or tniining, while p~rhaps attractive to the prospective U.S. employer, does riot 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, 22 I&N Dec. 221. 
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For the sain~ reason, the. petitioner's recitation of special qualifications and credentials does not, on 
its face, demonstrate eligibility for the waiver. . 
The petitioner made general assertions about 'special education teachers, stating for instance that they 
"are more effective in boosting mathematics achievement of students with disabilities" and "are 
likely to use a wider variety of teaching strategies." It does not follow that all special edu~ation 
teachers are, therefore, collectively exempt from the statutory job offer requirement. 
Although counsel, in the accompanying statement, · took pains to assert that the waiver claim is not 
based on a shortage of workers, the petitioner asserted that there "is a persistent critical/shortage 
[sic]" of special education teachers "in Maryland and. the United States." The labor certification 
process exists toaddress such shortages. See NYSDOT, 22I&N Dec. 218. 
The director denied the petition on November 8, 2012, stating: "the attainment ofa Master's degree 
or achieying the 'goals ofNo Child Left Behind' 'would not meet the national interest threshold." 
The director asserted that the petitioner must estabfish that he, individually, qualifies for the waiver; 
it ca~ot suffice for:the petitioner to rely on general, statements about his profession. 
On ~ppeal, counsel :.notes that Congress passed the No Child Left Behmd Act three years after the 
-issuance ofNYSDOT as a precedent decision, and that therefore "[t]here is no longer vagueness or 
obscurity'' on the .question · of whether "highly qualified teachers" serve the national interest. 
Counsel, however, identifies iio special legislative or regulatory provisions that exempt school 
teachers from NYSDOT ,or reduce its inipact on them. 
The assertion that the No Child Left Behind Act is tantamount to a retraction or modification of 
NYSDOT is not persuasive; that legislation did not amend section 203(b)(2) of the Act. 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 ~mend the . 
Act to clar~ty the waiver provisions, but has in fact dope so in direct response to NYSDOT, counsel 
has not 111ade a persuasive claim that the No Child Left Behind Act indirectly implies a similar 
legislative change. ·· · 
Turning to immigration legislation, counsel states: 
Withrespect 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 member~ 
of the professions holding advanced degrees or their equivalent or who because of their 
exceptional '. ability in ·the sciences, . art~, or business, will substantially benefit 
prospectively the national ... educational biterests, ... of the United States, and 
whose servi~es ·in the sciences, arts, professions, or business are sought by an employer 
in the United States." · · · 
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(Counsel's emphasis,) · Counsel, aboVe, Hlgliiighted hie 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 section of relevant law that supports the director's conclusion. By the .plain wording 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 Q.ational ... educational interests ... of the United States." Neither the 
Immigration and Nationality Actnor the No Child Left Behind Act, separately or in combination, 
create or imply any blanket waiver for teachers, and any attempt to fashion such a waiver out of the 
wording of the statutes must therefore faiL 
Counsel quoted remarks made by then-President George H.W. Bush when he signed the 
Immigration Act of 1990, which created the national interest waiver. In those remarks, President 
Bush stated: "This bill provides for vital increases for entry on the basis ofskills, infusing the ranks · 
of our scientists and engineers and educators with new blood and new ideas." Counsel interprets this 
passage to mean that Congress created the national interest waiver for educators. The Immigration 
Act of1990, however, was not restricted to the creation ofthe waiver. It was, rather, an overhaul of 
the entire immigration structure, creating new employment-based immigrant classifications to 
replace the former ''third preference" and "sixth preference" classifications previously iri place. 
"[S]cientists and engmeers and educators" are all members of the professions who, under the terms 
dictated by Congress in the Immigration Act of 1990 (as it amended the Act), are all subject to the 
job offer requirement. 
Counsel emphasizes the importance of closing the "achievement gap" and states that the petitioner 
plays a significant role in that endeavor. Counsel does not show that the petitionerhas, in fact, made 
significant strides in that direction. Instead, counsel stated: "The fact that did not meet its 
2012 AMO target for Reading proficiency underscores the importance of having effective teachers 
ofReading/Language Arts in each classroom." Counsel, previously, had emphasized the subjects of 
. sctence and· mathematics. With still underperforming after the petitioner had worked there 
for several years, counsel fails to explain why the petitioner is not only the ideal candidate for the 
position, but also el}gible for a waiver of_statutory provisions designed to allow qualified United 
States 
workers to compete for the position. 
. . . ' . 
Counsel protests that the director held the petitioner to "ambiguous" requirements, which ''is 'unduly 
· burdensome'· and in effect tantamount to requiring 'impossible evidence."' With respect to the 
petitioner's influence on the field, counsel asserts that "nobody has control over who and how her 
works are accessed and used," and that NYSDOT relies on "hypotheticals." NYSDOT is a bind~g 
precedent decision that the director had no discretion to disregard. See 8 C.F.R. § 103.3(c). Counsel 
cites no statute, regulation, superseding precedent decision or court decision that retracts, annuls or 
modifies NYSDOT in a manner relevant to this proceeding. (As noted previously, counsel cites the 
No Child Left Behind Act throughout the appellate brief, but never identifies any immigration­
related clause in that · statute, let alone any specific provision granting blanket waivers to "highly 
qualified teachers.") NYSDOT codifies USCIS's interpretation of the statute and regulations: . 
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• Counsel's different opinion regardillg such interpretation has no weight in this proceeding, and 
'neither compels nor authorizes ' any user's officer to .disregard standing precedent. users, 
including the AAO, has approved national interest waiver petitions under its provisions. With 
respect to the requirement that the . petitioner show wider influence on the field, there are various 
ways in which sucJl influence is possible, . such · as development of a widely used curriculum or 
educational strategy: When a teacher's work is co,nfined to the classroom, however, the impact of 
that workis strictly local, as acknowledged in NYSDOT at 217 n.3. 
Counsel asserts that the petitioner "has submitted overwhelming evidence" that "she [sic] has a past 
history of achievement with some degree of influel}Ce on the field ofspecial education as a whole." 
Counsel then lists previously submitted exhibits, but does not explain. how they show the petitioner's 
influence on the field of special education . . The petitioner won some awards in the Philippines, but 
the petitioner ·has not submitted key . information about those awards. Counsel also noted the 
petitioner's submission of witness letters. Those letters contained general praise for the petitioner's 
abilities and dedication as a teacher, but counsel does not quote any of the letters to show .how the 
petitioner's work ha.S had or will eontinue to have influence over the field as a whole . 
. Counsel contends tl;lat the "Texas Service Center should have presented its own comparable worker 
and deliberated its pciint in the decision, allowing the petitioner to rebut such_ a solid fmding of fact." 
The burden of proof is on the petitioner to establish eligibility for the benefit sought; USCIS is not 
required to present ?11 idealized' example of an eligible alien for the petitioner to "requt." See section 
291 of the Act, 8 U .. S.C. § 1361. · 
Counsel on appeal claims: "the Immigration Service is requrrmg more from the beneficiary's 
·credentials and tantamount to having exceptional ability," even though one need not quaiify as an 
alien of exceptional ability in order to receive the waiver. It remains that the petitioner's certificates 
do not facially establish eligibility for the national interest waiver. Counsel clearly considers these · 
certificates to be significant, listing them again on appeal; while at the same time protesting that the 
petitioner need not explain how the certificates are significant. The director did not require the 
petitioner to establish exceptional ability m his field. Inste.ad, the director observed that the 
petitioner's certificates resemble ' evidence of routine ·work product rather than evidence that the 
petitioner's work has had.an influence beyond the school districts where he has worked.· 
Co~nsel asserts that there remains a pressing need. for educational reforin, ·because past efforts s.uch 
as Teach For America have not produced satisfactory results. Counsel does not show that the 
petitioner's individual efforts, after several years·inthe United States; have stood out in this regard. 
Counsel contends that, under the No Child Left Behind Act, schools that fail to meet specified 
. benchmarks will lose federal funding and be ''abolished," thereby putting the teachers out of work, 
and therefore United States teachers have an incentive to waive 'the labor certification requirement . 
for highly qualified teachers. Counsel offers no real:-life example of this situation ever happening, 
.· and it appears to be one of the "hypotheticals"that counsel condemned elsewhere in the same brief. 
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The bulk of the appellate brief consists of complaints about .labor certification and NYSDOT and 
general statements about educational reform. It is within Congress's power to establish a blanket 
waiver for teachers, "highly qualified" or otherwise, but contrary to counsel's assertions, that waiver 
does not yet exist. Counsel largely limits discussion of the petitioner's individual merits to a list of 
previous submissions, followed by the summary conclusion that the petitioner's eligibility should be 
obvious from the quality of the submitted evidence. 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals fr~m the requirement of a job offer based 'on national interest. 
Congress has not established any blanket waiver for teachers.· Eligibiiity for the waiver rests not on the 
basis of the overall importance of a given profession, but rather 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 burden of proof in. these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S. C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal. is dismissed. 
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