dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: .·APR Q ] 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S .C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5 . Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Admini strative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The 
petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a special education resource teacher for 
1 in Maryland. The petitioner began teaching at , . 
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Maryland, in 2006. 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 and background evidence. 
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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT 
90), Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significant] y above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215,217-18 (Act. Assoc. Comrn'r 1998) 
(NYSD01), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Jd. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Jd. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Jd. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. Jd. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. Jd. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore , whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker , on February 17, 2012. In 
an accompanying statement, counsel stated that the petitioner's "petition for waiver of the labor 
ce11ification is premised on her Master's of Education Degree Major in Special Education: Mild to 
Moderate Disabilities, more than twenty (20) years of dedicated and progressive teaching experience 
. . . and the commendations and recognitions received by her." 
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Academic degrees, experience , and recognition for achievements and contributions 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 turn, is not self-evident grounds for the waiver. See section 
203(b)(2)(A) of the Act. Particularly significant forms of recognition can indicate broader impact 
and influence, but the burden is on the petitioner to establish as much. See section 291 of the Act, 
8 u.s.c. § 1361. 
Counsel's list of the beneficiary's "awards and recognitions" described five certificates in the record . 
Two ofthe cer1ificates are from One acknowledged the petitioner's work as a presenter at a 
• _ team retreat in 2007; the other is a certificate of appreciation 
recognizing unspecified "valuable contributions to the Special Education Department. " Two of the 
certificates are from the An 
"Outstanding Service certificate" recognized the petitioner's "invaluable contribution in giving 
academic help to the students of _ -- o-- _ --· o while a "Certificate of 
Excellence" commended the petitioner "for sharing her expertise in Response to Intervention." 
The fifth certificate is a "Certificate of Membership [in] the 
Society," issued to the petitioner "[i]n recognition of [her] outstanding academic achievement" while 
a graduate student aL . The evidence indicates that membership in the society 
rests on academic achievement as a student rather than on accomplishments as an educator. The 
petitioner has not shown that any of the submitted certificates establish the petitioner's significant 
impact or influence on education beyond 
A teacher's influence on her own classroom is local, and does not establish that the benefit from her 
work will be national in scope. See NYSDOT, 22 I&N Dec. 217 n.3. 
Counsel stated: 
In less than a year of employment [in] November 2006 [on] the teaching force of 
, [the beneficiary] already made a 
name in Area 2 Special Education Department as a Special Education Teacher, as a 
Special Education School Coordinator, as a Maryland Online School System 
Administrator, and as a school-based Medicaid Coordinator at C- -~ _ _ .. 
Elementary School, a hard to staff school because it is a TITLE I school. 
Counsel stated that the school "did not meet the Adequate Yearly Progress for consecutive years," 
but met that target "[t]he moment" the petitioner began teaching there . Even if the petitioner had 
shown that she was largely responsible for this school-wide improvement, this effect is essentially 
local with no demonstrated wider significance. 
Counsel added that the petitioner "co-authored a published book in 2004 ... which was used in 
many private schools in the Philippines." The petitioner submitted a copy of the book (a Filipino-
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language reading workbook), but the record does not establish that the book's impact on education in 
the Philippines. Furthermore, there is no evidence that the petitioner has written any books since 
entering the United States in 2005, or that she will do so in the foreseeable future. Therefore, the 
petitioner's involvement in the creation of a school book in the Philippines is not evidence of her 
impact on education in the United States. 
Counsel stated: 
But for the unfortunate incident that happened to the - · 
. ,....., ··:· '"'--'- ~-' the school system and the 
entire nation as a whole remain in need of the professional services of [the petitioner] as 
a teacher and leader in developing young minds with much emphasis [on] children with 
disabilities to excel in their studies, personal and inter-personal growth. 
Counsel did not identify or describe "the unfortunate incident, " but it is a matter of public record that 
the U.S. Department of Labor invoked the debarment provisions of section 212(n)(2)(C)(ii) of the 
Act against . owing to certain immigration violations by that employer. As a result, between 
March 16, 2012 and March 15, 2014 , USCIS could not approve any employment-based immigrant 
or nonimmigrant 
petitions filed by This debarment period began a month after the 
petitioner filed the present petition, and ended shortly before the writing of the present decision. 
Before the debarment occurred , iled a Form I-140 petition on the beneficiary's behalf on 
November 18, 2010, with an approved labor certification filed on April 20, 2010. The Texas Service 
Center approved that petition on May 14, 2011 , classifying her as a professional under section 203(b)(3) 
of the Act. By applying for the national interest waiver, the petitioner has sought an exemption from a 
requirement that she has already met. The debarment order did not affect previously approved petitions, 
and the approval of the November 2010 petition remains in effect. 
The petitioner subm~tted letters from officials, teachers and administrators at and 
other schools where the petitioner has taught, and a former student and his father. The witnesses 
offered praise for the petitioner's skills as a teacher. • , credited 
the petitioner with a 20 percent increase in the number of special education students scoring 
proficient or advanced on standardized tests. However significant this result may be for - ---- the 
record does not show that the petitioner's efforts have affected student achievement at schools where 
she herself has not worked . Her impact in this respect, therefore, is local. 
Several of the witnesses asset1ed that has an ongoing need for the petitioner's services. 
These witnesses did not acknowledge or mention l , approved petition on her behalf. 
The director issued a request for evidence on May 16, 2012, stating that the petitioner "must 
establish ... a past record of specific prior achievement with some degree of influence on the field 
as a whole." 
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In response, the principal of asserted that the special education students did not meet their 
testing targets following the petitioner's departure. (Submitted statistics show that ' special 
education students met the proficiency target for reading in 2012, but not the target for 
mathematics.) Counsel asserted that this decline in student performance is evidence that the 
petitioner "possesses innovative skills." The record does not show that the petitioner's departure 
was the sole or primary cause of the drop in scores. The petitioner herself stated that "all the special 
education teachers at _ resigned" between 2007 and 2012. 
Citing the above attrition as an example, the petitioner stated that "special education teachers are 
hard to keep." A local shortage of special education teachers is not grounds for a national interest 
waiver, because the labor certification process is in place to address local shortages. Congress has 
created no blanket waiver for special education teachers, and attrition within the specialty does not 
establish the petitioner's impact or influence on her field as a whole. 
Counsel claimed a "Dilemma in Labor Certification Process if Required, " because the labor 
certification process cannot take the petitioner's experience and master's degree into account. 
Counsel did not acknowledge that has in fact obtained an approved labor certification for the 
petitioner, which formed the basis for an approved immigrant petition. Given that has, in 
fact, secured an approved labor certification for the petitioner, all of counsel's hypothetical reasons 
why might encounter difficulty in obtaining a labor certification are moot. 
The petitioner also submitted a copy of a new contract with , showing that the school system 
rehired her in June 2012 after she obtained employment authorization. Thus, the petitioner has 
already returned to the school system that, once the appropriate immigrant visa number is available 
(and assuming that the petitioner qualifies for adjustment of status), will be able to employ her 
permanent! y. 
Many of counsel's assertions are general statements about the need for qualified special education 
teachers. Because Congress has created no blanket waiver for such teachers, these claims cannot 
suffice to show that any one particular special education teacher qualifies for the waiver. 
Counsel cited statistics indicating that 59% of special education teachers have master's degrees , and 
92% of special education teachers hav·e full certification in the specialty. Counsel stated that "[a] little 
less than a majority of [children with special needs] either are not taught by Master's degree holder 
teachers or fully certified Special Education teachers." The cited figures show that most special 
education teachers have master 's degrees, and almost all of them have "full certification." The 
petitioner's possession of these commonly-held credentials does not set her apart from others in her 
field. Given the above figures, those credentials represent a degree of expertise ordinarily encountered 
in the field of special education, and therefore a master 's degree and full certification do not 
demonstrate exceptional ability. Exceptional ability, in turn, is not sufficient to qualify for the national 
interest waiver. 
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Counsel contended that "the Inherent Right to Privacy by Available U.S. Workers impedes [the 
petitioner] from squarely complying with the [NYSD01l mandate." Counsel's contention rests on 
the incorrect assumption that the NYSDOT guidelines consist of an item-by-item comparison of the 
petitioner's credentials with those of qualified United States workers. ·The key provision in 
NYSDOT is that the petitioner must establish a record of influence on the field as a whole. /d. at 
219, n.6. This does not require a comparison of the petitioner's credentials with those of other 
teachers. 
Counsel stated: "In addition to her awards and recognitions previously submitted in the initial packet , 
we wish to submit Teacher/Performance Evaluations from 2006 to 2011 (enclosed) showing her 
consistent 'Satisfactory Rating ' which is the highest choice in the diagram ." The evaluations offered 
only two choices, "Satisfactory " and "Unsatisfactory. " (An intermediate "Needs Improvement " 
category applied only to interim evaluations.) The petitioner did not establish that consistent ratings of 
"satisfactory " are rare or unusual. Furthermore, these evaluations do not establish influence outside of 
one school. 
The petitioner submitted a letter from , president and publisher at 
., the company that published the petitioner's previously mentioned book. 
asserted that the book "has been widely accepted and used by schools all over our 
country ," but she did not elaborate or provide specific figures to support this general claim . Going on . 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings . Matt er of Soffici , 22 I&N Dec. 158, 165 (Comrn'r 1998) (citing 
Matt er of Treasur e Craft of California , 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The existence of 
the book does not establish the petitioner ' s ongoing or potential future impact on the field of 
education. The petitioner ' s own statements do not include mention of plans for future books. 
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 service 
center 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. 
The director denied the petition on October 27, 2012 , stating that the petitioner had not established 
that she "plays a signific ant role in [her] field, " and that general assertions regarding that field did 
not establish the petitioner's individual eligibility for the waiver. The director also noted that, 
between the earlier approved petition and the resumption of the petitioner's employment with 
"it's unclear how the denial of this petition would negatively impact the 
On appeal , counsel claims : "the reasoning behind the denial of the .. . I-140 Petition is a complete 
departure from the parameters elicited in the New York Department of Transportation case." 
Specifically , counsel quotes the following passage from NYSDOT: 
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It appears from the record that the petitioner seeks to classify the beneficiary both as 
an advanced degree professional and as an alien of exceptional ability. The record 
establishes that the beneficiary holds a Master of Science degree in Civil Engineering 
(Structures) from and thus qualifies as a member of the 
professions holding an advanced degree. The issue of whether the beneficiary is also 
an alien of exceptional ability is moot. 
Jd. at 216. Counsel states: "the issues raised in the denial dealing [with the petitioner's] 
qualification[ s] are academic since she has already met the Advanced degree requisite ." Counsel 
does not identify any specific passage from the decision in which the director purportedly required 
the petitioner to establish exceptional ability. The director did not cite the lack of evidence of 
exceptional ability as a basis for denial. In terms of the director's claimed "complete departure from 
the parameters" of NYSDOT, that decision specified that a petitioner seeking the waiver must 
demonstrate prospective national benefit significantly above what would be required to qualify as an 
alien of exceptional ability. !d. at 216-17, citing 56 Fed. Reg. 60897, 60900 (November 29, 1991). 
Counsel makes general statements about federal efforts to reform and improve public education, and 
asserts that "the benefits that would be conferred [by the petitioner 's work] spreads to the entire 
nation's economy and security." Counsel contends: "a single 'Highly Qualified Teacher' can inspire 
a national figure such as a President
, a legislator , a member of the judiciary, a scientist, among 
others." Eligibility for the waiver cannot rest on long-term speculation about the potential 
achievements of the petitioner's students, even if it could be shown that the accomplishments of a 
high-ranking government official trace back to the influence of a single elementary school teacher. 
General statements about education and educational reform address the intrinsic merit of education, 
but not the other two prongs of the NYSDOT national interest test. Likewise, assertions about the 
national importance of education as a whole do not lend national scope to the classroom efforts of 
one individual teacher. See NYSDOT, 22 I&N Dec. 217 n.3. 
Counsel repeats prior assertions regarding attrition rates among special education teachers. As 
above, these statements are general claims regarding the petitioner's field rather than specific 
information showing that the petitioner serves the national interest to a greater extent than other 
qualified professionals in her field. 
Counsel quotes then-President George H.W. Bush who, upon signing IMMACT 90 into law , stated 
that the law "provides for vital increases for entry on the basis of skills, infusing the ranks of our 
scientists and engineers and educators with new blood and new ideas." Counsel also notes that 
IMMACT 90, "which is the very law creating [the] 'National Interest Waiver,' affirms the critical 
role of'educators' in for [sic] this purpose. " Section 203(b)(2)(A) ofthe Act does cite "the national 
... educational interests ... of the United States ," but the same section of the statute incorporates a 
requirement that the immigrants ' "services ... are sought by an employer in the United States." The 
legislation does not show that teachers automatically qualify for the waiver; it proves the opposite. 
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President Bush's comments were about IMMACT 90 as a whole, including the job offer requirement 
clause, not about the national interest waiver specifically. 
Authority to designate blanket waivers rests with Congress. USCIS will not designate blanket 
waivers for entire fields or specialties. See NYSDOT, 22 I&N Dec. 217. Section 203(b)(2)(A) of the 
Act did not create or imply a blanket waiver for teachers or any particular subset of teachers. Rather , 
it held all members of the professions, including teachers, to the job offer requirement. In contrast, 
section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, 113 Stat. 1312 
(1999), specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) 
to that Act, to create special waiver provisions for certain physicians. Thus, 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 identified a comparable provision relating to teachers in any statute. 
Counsel refers to the No Child Left Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1425 (Jan. 8, 
2002), but counsel has not cited any provision of that statute that amended the Immigration and 
Nationality Act to create a blanket waiver for teachers. 
Counsel repeats the contention that "the tedious process of labor certificate [sic]" presents a 
"dilemma, " even though, as the director noted in the denial decision, the petitioner is already the 
beneficiary of an approved petition with a labor certification. Counsel, on appeal, does not address 
the approved petition , instead treating the job offer requirement as a barrier to the petitioner's 
continued employment with . Speculation about factors that might prevent the petitioner 
from obtaining a labor certification cannot outweigh the plain fact that the petitioner already has one. 
Having begun the appellate brief by alleging that the director 's decision "is a complete departure 
from the parameters elicited in the New York Department of Transportation case ," counsel 
concludes by asserting that "strictly enforcing the rudiments behind the New York State Department 
of Transportation Case to Highly Qualified Educators is unjust , unreasonable and damaging to the 
Best Interest of the American School Children." Counsel contends that NYSDOT should not apply to 
teachers because , whereas the beneficiary in NYSDOT was an engineer who worked with inanimate 
objects (bridges), teachers like the petitioner work with "children, human persons ." Counsel asks 
the AAO to "[ d]etermine that the cause of American School children is deserving [of] a new thought 
process, distinct from considerations employed by the Immigration Service in adjudicating the New 
York State Department of Transportation case ." 
By design , the three-pronged NYSDOT national interest test is broadly applicable to the range of 
occupations covered by section 203(b )(2) of the Act; the test is not specific to bridge engineers. A 
teacher who meets the three prongs would qualify for the waiver, but, as the NYSDOT decision 
indicated at 217 n.3, the teacher would not meet those prongs simply by being effective in the 
classroom. There are ways that an educator can have a broader impact, for instance by contributing 
to the development of national initiatives such as the Common Core State Standards Initiative or by 
developing widely used curricular or teacher training materials. The petitioner in this proceeding 
has not claimed involvement in these wider activities, relying instead almost entirely on her 
reputation within The petitioner co-wrote a school book in the Philippines in 2005, but the 
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record does not establish that the book had a greater impact on elementary education than other 
books for the same subject and grade level, and the petitioner has not continued to produce published 
material in the United States. 
The exhibits submitted on appeal (such as copies of the NYSDOT decision and a study on special 
education) are general in nature, rather than specific to the petitioner as an individual. Because there 
exists no blanket waiver for special education teachers and the AAO does not claim authority to 
create one, these materials support specific claims of fact in the appellate brief, but not counsel's 
overall claim that teachers are, or ought to be, exempt from NYSDOT's provisions. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically , the petitioner "must clearly present a significant benefit to the 
field of endeavor. " /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.