dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: MAR 3 1 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citi ze nship and Immigr ation Services 
Office of Administrative App eals 
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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclo sed please find the decision of the Administrative Appeals Office (AAO) in your case . 
This is a non-prec edent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe thti 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. 
Thank you, 
_,)J tJUJinc/u 
(J ~~~ Rosenberg 
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 1-140, Immigrant Petition for Alien Worker. the oetitione seeks emolovment as a 
special education teacher. The petitioner has taught for 
, since 2006. At the time of filing, the petitioner was working for 
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. Specifically, the 
director determined that the petitioner seeks employment in an area of substantial intrinsic merit. 
Additionally, the director stated that "USCIS [U.S. Citizenship and Immigration Services] does not ... 
dispute that the field is national in scope." The director concluded, however, that the petitioner had not 
established that she will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. 
On appeal, the petitioner submits copies of documents that were previously submitted, a statement 
describing her personal circumstances and requesting approval of the petition, and a statement in Part 3 
of the Form I-290B, Notice of Appeal Or Motion, contesting the director's decision. 
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 inm1igrants 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. 
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The record reflects that the petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in contention is whether the petitioner has established that a waiver of the job 
offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .. .. " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest 
with the alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that she seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. !d. at 217-18. 
The petitioner has established that her work as an elementary school special education teacher is in 
an area of substantial intrinsic merit. As will be discussed, however, the director's determination 
regarding the national scope of the proposed benefit associated with the petitioner's work will be 
withdrawn. The remaining issue that will be addressed is whether the petitioner has established that 
she will benefit the national interest to a greater extent than an available U.S. worker with the same 
minimum qualifications. 
Although the national interest waiver hinges on prospective national benefit, the petitiOner must 
establish her past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner 's subjective assurance that she will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require 
future contributions by the petitioner, rather than to facilitate the entry of an individual with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
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Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. Jd. at 220. Moreover, it cannot 
suffice to state that the petitioner 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 U.S. Department of Labor through the labor certification process. !d. at 221. 
The petitioner filed the Form I-140 petition on March 11, 2013. In Part 4 of the Form I-140, the 
petitioner answered "no" to whether any immigrant visa petitions had previously been filed on her 
behalf. The record, however, reflects that filed a Form I-140 petition, 
with an approved labor certification, on her behalf on July 27, 2009, to classify her as a professional 
under section 203(b )(3)(A)(ii) of the Act. The Texas Service Center approved the petition on 
August 4, 2009, with a priority date of October 1, 2008. 
In support of the instant petition, the petitioner submitted letters of support from three staff members 
stated: 
I have known [the petitioner] for the past two years where she serves as the Special 
Education Resource Teacher at ~ ' In this position, she also serves 
as the department chair with the responsibility of coordinating the Individualized Educational 
Plan Meetings for students. She is instrumental in ensuring that all Special Education 
Policies and Procedures and ... support to staff and students are in compliance. 
I have observed [the petitioner] during a myriad of formal and informal observation and was 
impressed with the manner in which she conducted the lessons. The lessons were well 
planned and executed in a manner to meet the unique needs of students who are challenged. 
She was very effective in guiding the students through an interactive approach which led to 
student mastery of the skills. 
[The petitioner] is very knowledgeable about the field of education and works collaboratively 
with the staff and parents to ensure that a well-rounded program is provided to meet the 
unique needs of our students. In addition, she is actively involved in our school wide 
initiatives, Student Intervention Team, and the School Based Management Team. She is 
highly recognized by her colleagues and has represented the school at various educational 
forums. 
[The petitioner's] contributions at have been of the highest caliberand she 
has earned the respect of everyone as a result of her leadership qualities. 
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comments on the petitioner ' s job responsibilities, effectiveness as a special education 
teacher, knowledge in the field, collaboration with staff and parents, participation in school-related 
activities, and leadership qualities , but does not indicate how the petitioner's impact or influence as a 
special educator is national in scope. In addition fails to provide specific examples of 
how the petitioner's work has influenced the field as a whole. At issue is whether this petitioner's 
contributions in the field are of such significance that she merits the special benefit of a national 
interest waiver, a benefit separate and distinct from the visa classification she seeks. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. NYSDOT at 219, n. 6. 
· ~~ ~~~ stated: 
-------------------------------------------
[The petitioner] is now presently assigned as a special education chairperson and special 
education resource teacher at the same time. She is a teacher who possesses the right 
behavior worthy of emulation and respect from her students. (The petitioner] is a valuable 
asset to ._ __ • and the students she serves. I have personally seen her 
go beyond the call and nature of her assignment to help the students she serves. She 
demonstrates a clear understanding of the knowledge , dispositions and performance 
associated with assisting students with special needs. She has clear sense of the school's 
vision and is a team player at As a dependable teacher, she never leaves 
an assigned task unfinished. She exercises quick 
and sound judgment in problem solving and 
in any situation that requires solution. Moreover, she is always willing to help others and 
stands available and approachable to the students and other teachers. Perhaps most 
impressive of her is her dedication, passion, and excellence in performing her responsibilities 
as the Chairperson of our IEP [Individualized Education Plan] Team. She has excellent 
organization skills and effective strategies in keeping our school in compliance in all matters 
related to annual reviews, reevaluations, and initial referrals. 
points to the petitioner's positive influence on students, her value to the school, 
effectiveness as a special educator, and qualities such as her dependability, sound judgment, and 
passion, but does not indicate that the petitioner's work has had, or will continue to have, an impact 
beyond 
stated: 
[The petitioner] has performed as a highly professional effective Special Education 
Chairperson and Resource Teacher. As a special education teacher, she appears to have 
effective classroom management skills and consistently maintains an outstanding rapport and 
relationship with her students, colleagues, and parents. Further, [the petitioner] implements 
research-based instructional practices such as Response to Intervention (RTI) in the 
classroom. She effectively interprets student data, monitors student progress, and 
(b)(6)
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implements the necessary educational interventions, as needed, to meet individual student 
needs. 
[The petitioner] further brings expertise, knowledge, and enthusiasm to her Special 
Education Team as a Chairperson. [The petitioner] is an asset to her team members in that 
she shares and assists both reglilar and special education teachers who may need support and 
guidance. She demonstrates creativity in her lesson preparation following curricular 
programs. Further, [the petitioner's] Individual Education Plans (IEPs) are well written, 
data-based , and effectively implemented for students in her caseload. For school psychology 
needs, she has consistently and effectively cooperated and completed required rating scales, 
interviews, and observations for assessments. As a Special Education Chairperson, she has 
demonstrated an exemplary performance in keeping the school in compliance in all annual 
reviews, reevaluations, and initial evaluations, including MEDICAID monthly IEP 
coordination report forms. 
comments on the petitioner's knowledge and expertise, her classroom management 
skills, positive rapport with others, effectiveness as a special educator, and her ability to maintain 
compliance with school guidelines. In addition , he discusses the petitioner's positive characteristics 
such as her professionalism, enthusiasm, cooperation, and creativity. However, his observations fail 
to demonstrate 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 similarly qualified elementary school 
special education teachers. 
The petitioner's references praise her abilities as a special educator and personal character, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of the school 
where she has taught. They also do not address the NYSDOT guidelines which, as published 
precedent , are binding on all USCIS employees. See 8 C.F.R. § 103.3(c). On page 3 of the decision 
denying the petition, the director stated that "USCIS does not ... dispute that the field is national in 
scope." The second prong of the national interest waiver test, however, does not require that the 
field be national in scope. Rather, it requires the petitioner to establish that the proposed benefit of her 
employment as a special education teacher will be national in scope. In the present matter, the 
petitioner has not established that her specific work as an educator will impact the field beyond 
With regard to the petitioner 's special education duties, there is no evidence establishing 
that the benefits of her work would extend beyond her elementary school students such that her 
benefits will have a national impact. NYSDOT 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, 
(b)(6)
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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. 
!d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a 
special education teacher beyond the students at her school and, therefore, that her proposed benefits 
are national in scope. In addition, the record lacks specific examples of how the petitioner's work as a 
special educator has influenced the field as a whole. 
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 ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
USCIS may, in 
its discretion , use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm 'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. !d. The submission ofletters of support from the petitioner's professional contacts is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting 
that expert opinion testimony does not purport to be evidence as to 
"fact"). 
In addition to the reference letters , the petitioner submitted the following: 
1. A "Certificate of Appreciation" from _ Instructional Supervisor (Kindergarten 
through Eighth Grade), Department of Special Education, stating: "In 
recognition of valuable contributions to the Special Education Department, this certificate 
is presented to [the petitioner] on this lOth day of May, in the year 2011 "; 
2. A "Certificate of Excellence" from the administration of 'for 
inspiring every student everyday at • '(May 3, 2011); 
----
3. A '~ _, . ~··-~- ~~~ ... ···- r··· ·~·r-· -- ~-- ------ -·· -··---- ----
during MSA (Maryland School Assessment] at 
2012); 
4. A "Personal Success Award" from the administration of 
congratulating the petitioner for earning a "Lion's Pride Award"; 
uner support 
(March 
5. A certificate expressing thanks for making "a difference in the life of a child" during the 
"2010-2011 School Year"; 
6. A Maryland Educator Certificate; 
7. A Master of Education degree from 
8. An Official Graduate Transcript fr01 
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Academic records, professional certifications, and recognition for achievements are elements that 
can contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A) , (C), and 
(F), respectively. Exceptional ability, in turn, is not a self-evident ground for the national interest 
waiver. See section 203(b )(2)(A) of the Act. 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. NYSDOT at 218, 222. Therefore, whether a given individual seeks classification 
as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above 
that ordinarily encountered in her field of expertise. The national interest waiver is an additional 
benefit, separate from the classification sought, and therefore eligibility for the underlying 
classification does not demonstrate eligibility for the additional benefit of the waiver. Particularly 
significant awards may serve as evidence of the petitioner's impact and influence on her field, but 
the petitioner has failed to demonstrate that the awards she received (items 1 - 5) have more than 
local or institutional significance. There is no documentary evidence showing that items 1 through 8 
are indicative of the petitioner's influence on the field of special education as a whole. 
The petitioner also submitted certificates of completion from for various training courses 
relating to her professional development. Although taking courses is a way to increase one's 
professional knowledge and to improve as a teacher, there is nothing inherent in such training to 
establish eligibility for the national interest waiver. 
The director denied the petition on October 9, 2013. The director determined the petitioner had failed to 
establish that she has influenced the field of special education as a whole, and that her skills and 
background have set her apart from others in the field. In addition, the director stated: "The record also 
does not show that the petitioner's influence has been and will be national in scope." The director 
therefore concluded 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. 
On appeal, the petitioner submits a statement describing her personal circumstances and the difficult 
challenges facing her family. The submitted information, however, does not demonstrate that the 
petitioner has impacted the special education field to a substantially greater degree than other sirnilary 
qualified teachers and that her specific work as an educator has had significant effect outside of 
In Part 3 of the Form I-290B, the petitioner states: 
Given the evidence that was provided wherein it was demonstrated that a "job offer" in the 
form of a Permanent Labor Certification and 1-140 petition was already approved on my 
behalf, but through circumstances beyond my control the benefits of that are withheld from 
me and the petitioning school system, it should be clear from this evidence that the continued 
(b)(6)
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requiring of such a petition constitutes a substantial burden on the petitioner /employer school 
system and that the loss of my services by so doing would be substantially disruptive to my 
ability to continue providing the services that were otherwise found to have substantial 
intrinsic merit. 
The petitioner mentions "circumstances beyond [her] control" and immigration benefits "that are 
withheld from [her] and the petitioning school system." The petitioner refers to the debarment 
rovisions of section 212(n)(2)(e)(i) of the Act invoked by the U.S. Department of Labor against 
owing to certain immigration violations by that employer. As a result, between March 16, 
2012 and March 15, 2014, users could not approve any employment-based immigrant or 
nonimmigrant petitions filed by - .- ' The debarment meant that was, temporarily, 
unable to file its own petition on the petitioner's behalf during the specified period, and thus explains 
why labor certification was not an option during that time frame. The inapplicability or 
unavailability of a labor certification, however, cannot be viewed as sufficient cause for a national 
interest waiver; the petitioner still must demonstrate that she 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) 
prevented from filing a petition on her behalf. 
In addition , the petitioner argues that her work has "substantial intrinsic merit" and that "the denial 
of this petition would ... undermine and be contrary to the U.S. national interests as [her] work has 
been found by the USCIS to be otherwise serving." The petitioner, however, does not point to a 
specific finding by USers stating that her work as a special educator serves "U.S. national 
interests." 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. !d. 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. 
The petitioner further states: 
In other words the U.S. national interests served by the granting of this petition overwhelm 
the U.S. national interests that would otherwise be served by the requiring of employer 
sponsorship. This is particularly true when it is a matter of record that I am already the 
beneficiary of a permanent labor certification which found that no U.S. workers were 
available and that the labor ma~kets with respect to my position are not adversely [a]ffected. 
The petitioner asserts that a waiver of labor certification is justified because "no U.S. workers were 
available" and that the labor markets "would not be adversely [a]ffected. " The unavailability of 
qualified U.S. workers and the amelioration of local labor shortages, however, are not considerations 
1 
The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.dol.go v/w hd/imm i£>:ration /H1BDcbarment.htm , accessed on March 19, 2014, copy incorporated into the 
record of proceeding. 
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in national interest waiver determinations because the labor certification process is already in place 
to address such shortages. Id. at 218. Again, the issue of whether similarly-trained workers are 
available in the U.S. is an issue under the jurisdiction of the U.S. Department of Labor through the 
labor certification process. !d. at 221. In addition, the petitioner's statement that she is "already the 
beneficiary of a permanent labor certification" indicates that there is a demand for credentialed 
special education teachers , a demand that the labor certification process can and, in this instance, did 
address. Specifically, the petitioner is the beneficiary of an approved labor certification that J 
filed on her behalf on October 1, 2008. 
The petitioner continues: "A finding that the U.S. national interests in granting this petition 
outweigh the national interests inherent to the job sponsorship process is a key and fundamental 
component of the Matter of NYSDOT 'third prong.'" With regard to the third prong of the NYSDOT 
test, as previously discussed, the evidence submitted by the petitioner does not establish that she has 
affected the special education field to a substantially greater degree than would an available U.S. 
worker having the same minimum qualifications, or that she has otherwise specifically influenced the 
field as a whole. 
A plain reading of the statute indicates that engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
The petitioner has not established that her past record of achievement is at a level sufficient to waive 
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. NYSDOT at 217, n.3. 
More specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." 
!d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable achievement 
with some degree of influence on the field as a whole"). 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, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.