dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: JUl O S 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: 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 
FILE: 
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. § ll53(b)(2) 
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 returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning 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 
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 requirements 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.F.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. 
Thank you, 
M 0 {J!Adn Ju 
(l Ron Rosenberg 
\ Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
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 hnmigration 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 teacher for 
(PGCPS). The petitioner teaches at _ Maryland. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief from counsel and copies of standardized test scores. 
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 hnmigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSDOT), 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 the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The USCIS regulation at 8 C.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 April 19, 2012. In an accompanying statement, 
counsel stated that the petitioner's "petition for waiver of the labor certification is premised on her 
Master's Degree in Special Education ... , Forty-two semester credit hours of transfer credit . .. 
[and] more than three decades (30 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 tum, 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. 
With respect to the beneficiary's "commendations and recognitions," the record contains copies of 
certificates from officials of and local school officials with jurisdiction over 
that school, praising the petitioner as "very diligent and resourceful in all aspects," acknowledging 
her work with local and as secretary of the parent-teacher association. 
Counsel stated that the petitioner 
has an exceptional ability and proficiency not only as a Special Education 
Chairperson and Special Education Resource Teacher but also as a Textbook Writer 
and a Textbook Reviewer. She co-authored two published books in entitled 
and co-authored 1 published book in entitled ' As a 
Textbook Reviewer, she reviewed the textbook 
Setting aside the question of whether wntmg three books and reviewing a fourth amount to 
"exceptional ability and proficiency . 
. . as a Textbook Writer and a Textbook Reviewer," the 
standard for the waiver is not "exceptional ability and proficiency." Furthermore, all of the 
identified examples date from nearly a decade before the petition's filing date. The petitioner did 
not claim that she has written or reviewed textbooks in the United States or has any reasonable 
prospects to do so. 
Counsel asserted that, despite "the unfortunate incident that happened to 
the school system and the entire nation as a 
whole remain in need of [the petitioner's] professional services." Counsel did not identify or 
describe "the unfortunate incident," but it is a matter of public record that the Department of Labor 
invoked the debarment provisions of section 212(n)(2)(C)(i) of the Act against owing to 
certain immigration violations by that employer. As a result, between March 16, 2012 and March 
15, 2014, USCIS cannot approve any employment-based immigrant or nonimmigrant petitions filed 
byPGCPS. 1 
Nevertheless, before the debarment occurred, filed a Form 1-140 petition on the 
beneficiary's behalf on July 8, 2009, with an approved labor certification filed on September 28, 
1 The list of debarred employers is available online at http://www.dol.gov/whd/immigration/HlBDebarment.htm 
(printout added to record June 18, 2013). 
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2008. The Texas Service Center approved that petition, 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 petitioner submitted letters from administrators, teachers, students, and parents of students. The 
witnesses praised the petitioner's skill and dedication, but did not indicate that the petitioner's 
activities in the area of special education have had more than a local effect. 
The director issued a request for evidence on June 26, 2012, instructing the petitioner to "submit 
evidence to establish that the beneficiary's past record justifies projections of future benefit to the 
nation." The director requested documentation of the petitioner's past accomplishments, and stated 
that the petitioner must establish the significance and scope of claimed awards. 
In response, counsel stated: 
Since a 'National Special Education Teacher' is not even a real concept but more of 
metaphysical cognition [sic], undersigned wishes to once again posit a realistic 
proposition upon which to establish that the self-petitioner's contributions will impart 
national-level benefits. 
Even authors of books, treatises and other academic materials on Special Education 
are not in any standing [sic] to claim that their contributions are national in scope 
since not all special education teachers can be said to utilize their works. 
The director did not require that the petitioner show that she is "a 'National Special Education 
Teacher,"' or that "all special education teachers ... utilize [her] works." National scope is not the 
same as universal reliance on the petitioner's work. 
Counsel stated: "it is but harmless to assert that if an NIW Petition is made with premise on some 
prevailing Acts of United States Congress, that by itself renders the proposed employment national 
in scope." All employment-based immigrant classifications are based on "prevailing Acts of United 
States Congress," and so is the statutory job offer requirement. Congress could supersede this 
requirement by 
passing new legislation specifically exempting special education teachers from the 
job offer requirement, but counsel did not show that Congress has in fact done so. Instead, counsel 
claimed that other legislation implies such an exemption even though that legislation does not 
mention immigration. Even if counsel had shown that special education meets the "national scope" 
prong of the NYSDOT test, national scope is not sufficient to establish eligibility for the waiver. 
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: "This bill provides for vital 
increases for entry on the basis of skills, infusing the ranks of our scientists and engineers and 
educators with new blood and new ideas." Counsel interpreted this passage to mean that Congress 
created the national interest waiver for educators. The Immigration Act of 1990, however, was not 
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restricted to the creation of the waiver. It was, rather, a comprehensive bill that, among other things, 
expressly subjected members of the professions to the job offer requirement, and defined school 
teaching as a profession. See sections 203(b)(2)(A) and 101(a)(32) of the Act. 
Counsel cited other legislation and court cases, all of which affirmed the importance of education but 
none of which exempted teachers from the job offer requirement at section 203(b )(2)(A) of the Act. 
Counsel acknowledged that the job offer/labor certification requirement exists to protect United 
States workers. Counsel contended that a waiver of that requirement would serve the same ultimate 
goal, by allowing the petitioner to train "today' s students [who] need to be academically competitive 
to guarantee their employability." Counsel further stated: "today's United States workers or Special 
Education Teachers are not as competitive as the foreign teachers who are already in the country 
since not all of them were educated by 'Highly Qualified Teachers."' This assertion relies on the 
presumption that all "foreign teachers" "were educated by Highly Qualified Teachers." Counsel 
cited no evidence to support that claim. The unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Counsel's response to the request for evidence includes several variations on one central theme, that 
"foreign teachers," as a class, are eligible for a blanket waiver of the job offer requirement. The 
petitioner offered no direct support for this claim, leaving counsel to rely instead on indirect 
inferences that do not withstand scrutiny. 
According to counsel's own statistics, the petitioner's credentials do not readily stand out. 
Specifically, counsel asserted that "59% [of] special educators in the nation [hold] a Master's degree 
or equivalent," and "92% [of] special educators [have] full certification." 
Counsel asserted that the petitioner possesses qualifications a~ove the bare minimum required for 
the job she seeks, but cannot "tailor-fit" an application for labor certification to show those 
qualifications. The Department of Labor, however, has already approved a labor certification for the 
petitioner, which led to an approved immigrant petition. Therefore, counsel cannot show that the 
petitioner is unable to obtain labor certification. At most, counsel has shown that the petitioner 
cannot obtain labor certification suitable for a higher priority immigrant classification. 
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. Similarly, under the regulation at 8 C.P.R. § 103.3(c), NYSDOT is 
binding precedent on all USCIS employees, and counsel has cited no superseding authority that 
directly addresses the issue of labor certification for teachers. 
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Many of the exhibits submitted in response to the request for evidence consisted of general evidence 
about immigration policy or special education. The only material specific to the petitioner consisted 
of photocopies of the beneficiary's textbooks. The books are in the Filipino language rather than 
English, with no submitted translation. Such a translation would be necessary if the petitioner 
wished USCIS to consider the contents of the books as evidence. See 8 C.P.R. § 103.2(b)(3). 
Therefore, the petitioner did not show that the textbooks pertain to special education, her work in 
which forms the basis for the waiver claim. 
The director denied the petition on November 7, 2012, stating that the petitioner had not met the 
requirements set forth in NYSDOT. The director asserted that, in the aggregate, "teaching is in the 
national interest, [but] the impact of a single Special Education teacher in Maryland" is local and 
does not warrant the national interest waiver. 
On appeal, counsel asserts that, at the time of NYSDOTs publication in 1998, there was no "clear-cut 
Congressional standard" for the national interest waiver. Counsel further contends that, by passing 
the No Child Left Behind Act (NCLBA) in 2001 (three years after NYSDOT), "the United States 
Congress ... has preempted the USCIS with respect to" the national interest waiver for educators. 
Counsel, however, identifies no specific legislative or regulatory provisions that exempt school 
teachers from NYSDOT or reduce its impact on them. 
The NCLBA 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, 113 Stat. 1312 (1999), specifically amended 
the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to create special waiver 
provisions for certain physicians. Because Congress not only can amend the Act to clarify the 
waiver provisions, but has in fact done so in direct response to NYSDOT, counsel has not made a 
persuasive claim that the NCLBA indirectly implies a similar legislative change. 
Turning to immigration legislation, counsel states: 
With respect to the E21 visa classification, INA § 203(b )(2)(A) provides in relevant 
part that: "Visas shall be made available ... to qualified immigrants who are members 
of the professions holding advanced degrees or their equivalent or who because of their 
exceptional ability in the sciences, arts, or business, will substantially benefit 
prospectively the national ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States." 
Counsel, above, highlighted the abridged 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 national 
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... educational interests ... of the United States." Neither the Immigration and Nationality Act nor 
the NCLBA, nor any other identified statute, regulation, or case law, create or imply any blanket 
waiver for teachers. 
Counsel discusses the "achievement gap" that continues to challenge educators nationwide. 
Although closing that gap may be a national goal, it does not follow that the petitioner's efforts 
toward that goal are, themselves, national in scope. Counsel contends that the petitioner "is an 
effective teacher in raising student achievement in STEM" (science, technology, engineering and 
mathematics), but cites no evidence to support this claim. Instead, counsel cited statistics 
showing 
"that out of the 24 Maryland school districts rranked near the bottom" in 2012 and "did not 
meet its Reading proficiency AMO targets." The petitioner has not shown that her efforts have 
resulted in measurable overall 
improvements or transformed into a model that other districts 
seek to emulate. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. Counsel's contention rests on 
the assumption that the NYSDOT guidelines involve an item-by-item comparison of an alien's 
credentials with those of qualified United States workers. To the contrary, the key provision in 
NYSDOT is that the petitioner must establish a record of influence on the field as a whole. Id. at 
219, n.6. To do so does not require an invasive review or comparison of other teachers' credentials. 
Counsel stated that a waiver would ultimately serve the interests of United States teachers, because if 
schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Law," the 
result would be "not only ... closure of these schools but [also] loss of work for those working in those 
schools." Counsel does not document "closure of ... schools" for failing to meet NCLBA 
requirements. 
Counsel emphasized "the 'Urgent Need' for 'Highly Qualified Teachers,"' and claimed that the 
labor certification process cannot accommodate this need because "[t]he United States Department 
of Labor minimum education requirement . . . for Elementary School teacher is just a bachelor's 
degree." 
Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." Briefly, by the 
statutory definition, a "Highly Qualified" elementary school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• has demonstrated, by passing a rigorous State test, subject knowledge and teaching 
skills in reading, writing, mathematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienced teachers not "new to the profession") 
demonstrates competence in all the academic subjects in which the teacher teaches 
based on a high objective uniform State standard of evaluation. 
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Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if 
he or she has "had certification or licensure requirements waived on an emergency, temporary, or 
provisional basis." 
The Occupational Outlook Handbook describes what the Department of Labor considers to be the 
minimum qualifications necessary to become an elementary school teacher: 
Public school teachers are. required to have a least a bachelor's degree and a state­
issued certification or license . . .. 
Education 
All states require public special education teachers to have at least a bachelor's 
degree. Some of these teachers major in elementary education or a content area, such 
as math or chemistry, and minor in special education. Others get a degree specifically 
in special education .... 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently 
referred to as a certification .... 
Requirements for certification vary by state. However, all states require at least a 
bachelor's degree. They also require completing a teacher preparation program and 
supervised experience in teaching, which is typically gained through student teaching. 
Some states require a minimum grade point average. 
Many states offer general special education licenses that allow teachers to work with 
students across a variety of disability categories. Others license different specialties 
within special education. 
Teachers are often required to complete annual professional development classes to 
keep their license. Most states require teachers to pass a background check. Some 
states require teachers to complete a master's degree after receiving their 
certification. 2 
The petitioner has not established that the "Highly Qualified" standard involves requirements that 
are significantly more stringent than those outlined in the Occupational Outlook Handbook, or that a 
public school could not obtain a labor certification for a "Highly Qualified Teacher." Indeed, the 
2 Source: http://www.bls .gov/ooh/education-training-and-library/special-education-teachers.htm#tab-4 (printout added to 
record June 20, 2013). 
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petitioner's own approved labor certification required her to hold a bachelor's degree in education, 
and to "have or be immediately eligible for Maryland Teaching Certificate," elements consistent 
with the "Highly Qualified" designation. 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
Congress has not established any blanket waiver for teachers. 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 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.