dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: 
APR 0 8 2013 
INRE: Petitioner: 
Beneficiary: · 
U.S. Department of Homeland Seeurity · 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
. 20 Massachusetts 
Ave., N.W., MS 2090 
Washington, DC 20529-2090 
OFFICE: TEXA~.SERVICE CENTER 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member ofthe.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 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, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Offic~ 
www.uscis.gov 
(b)(6)
\ 
Page2 
_ 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) ofthe Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with progressive post~baccalaureate 
experience equivalent to an advanced degree. The petitioner seeks employment as a special education 
teacher for . At· the time she filed the petition, the 
petitioner taught 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 Up.ited States. The director found that the petitioner qualifies for classification as a 
member of the professions with the equivalent of 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 ofthe 
United States. 
. -
On appeal, the petitioner submits a brief from counsel and oopies_ of standardized test resuhs. 
Section 203(b) ofthe 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 progressive 
post-baccalaureate experience equivalent to an advanced degree under the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(3)(i)(B).- 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. 
(b)(6)
PageJ 
Neither -the statute nor the pertinent regulations defirie 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 benef).t 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, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991 ), states: 
The Service [now 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 (NYSD01), 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 hing~s 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 
contnbutions 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 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 clas~ification 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 26, 2012. In·an accompanying statement, 
rounsel stated that the petitioner seeks the national interest waiver, but counsel did not address the 
guidelines set forth in NYSDOT. Instead, counsel listed the evidence supmitted, and cited the 
petitioner's '·'Master's Degree Equivalent granted by the _ _ . about twenty seven 
(27) years of progressive work experience ... , and most importantly, the numerous awards she 
(b)(6)
Page4 
received from 
Philippines." 
in the United States and in the 
Degrees, experience, and recognition for achievements and contributions are all elements of a claim 
of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and (F), respectively~ Thus, counsel 
essentially claims that the petitioner merits a waiver as an alien of exceptional ability in her field. 
. . I 
As noted previously, exceptional ability in the sciences, the arts or business is not sufficient to 
warrant the national interest waiver. The plain wording of section 203(b )(2)(A) of the Act indicates 
that aliens of exceptional ability are subject to the job offer requirement (including labor 
certification). ,_ 
Counsel continued: 
Her accomplished dedication . has not only theoretically helped improve the 
education in the country but most importantly has in the process completely and -
realistically re-:created the young lives of students worth living as evidenced by the 
testimonials. And as we know, these heartfelt testimonials are as powerful as any. 
award or citation from recogniZing bodies. 
In addition, the merit of [the petitioner's] request for National Interest Waiver is 
based on the improvement t9 the United States Education more particularly in 
the field of Special Education, which she has actually already been fulfilling as 
Special Education Teacher in the State of Maryland since 2005. Notwithstanding 
this, [the petitioner] is determined to continue her selfless serv'ice to
1 
the nation of 
improving the Special Education ~ the United States of America by challenging other 
public schools in the country to equal at least or better yet surpass the progress 
obtained by her students in Maryland. 
(Counsel's emphasis.) 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). Therefore, it is necessary to 
examine the evidence submitted in support of the petition. In terms of' the petitioner "challenging 
other public schools in the country'' to match or exceed her students' progress, the petitioner must 
show, first, that her students have in fact made a conspicuously significant level of progress in 
. comparison with other special education students, and second, that teachers and schools across the 
nation -are aware of the "challenge" that counsel claimed the petitioner has posed. In this regard, 
letters from the petitioner's former students, whatever their emotional app~al, do not show the 
broader inipact and influence that th_e NYSDOT guidelines demand. Likewise, submitted letters from 
school administrators; teachers, and parents of students showed appreciation for the petitioner's 
diligent efforts on behalf of her students, but do not establish wider impact or mfluence, either in the 
past or prospectively. 
testing coordinator for : stated: 
(b)(6)
PageS 
This is to certify that [the petitioner's] kindergarten class has performed excellently in 
our school's recent assessments. Data show that 80% - 100% of her students 
I 
performed over and above the quarterly benchmarks and have already met the end-of-
school year requirements. . . . Also, records. show that her low performing students 
. indicate significant improvement in their test scores as the school year progressed. 
This means that [the petitioner] has been utilizing intervention strategies to improve 
learn~g among these low performers. 
Accompanying tables (also signed by show, as claimed, that between 80% and 100% 
of the_ petitioner's 20 students met the October 2011 and January 2012 benchmarks for various 
literacy assessments, but the figures are considerably lower for most of the end-of-year benchmarks 
(one 90%, the rest ranging from '45% to 75%), contradicting the claim that "80% - 100% of her 
students ... have already met the end-of-year school requirements." The petitioner submitted no 
evidence about other classes to allow a meaningful comparison between the performance of her 
students and that of students in other classrooms. 
A section ofthe record labeled "Awards and Certificates" consists of photocopies of 15 certificates 
from schools that have employed the petitioner, as well as other local entities such as parent-teacher 
associations. Some certificates recognized specific achievements, such as a "Certificate of 
Recognition" from Philippines, naming the petitioner 
"Best in Lesson Planning." Others are simply generalized expressions of appreciation. None show 
recognition beyond the local level. 
On July 3, 2012, the director issued a request for evidence, instructing the petitioner to "submit 
evidence to establish that the beneficiary's past record justifies projections of future benefit to the 
nation" (director's emphasis), and to show her "previous influence on the field as a whole." In 
response, counsel stated: 
Smce 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 cari be said to utilize their works. 
The director did not state that the petitioner had to show that ~he 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. 
(b)(6)
Page6 
Colinsel stated: "it is but harmless to assert that if an NIW Petition is made with premise on some 
prevailing Acts of United States Congress, thatby itself renders the proposed employment national 
in scope." This assertion may be. "harmless," but it is not persuasive. All employment-based 
immigrant classifications are based on "preyailing Acts of United States ·congress," and so is the 
statutory job offer requirement. There is no rational basis to conclude that Congress, by mentioning 
a given occupation in a particular piece of legislation, exempted aliens in that occupation from the 
job offer requirement. 
Counsel quoted remarks made by then-President George H.W. Bush when he signed the 
Immigration Act of 1990, which cre~ted 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 interprets this passage to mean that Congress 
created the national interest waiver for educators. The Immigration Act of 1990, however, was not 
restricted to the creation of the waiver. It was, rather, an overhaul of the entire immigration 
structure, creating new employment-based immigrant classifications to replace the ''third preference" 
and "sixth preference" classifications previously in place. "[S]cientists and engineers 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 mentioned 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 tniin ''today's students [who] need to be academically competitive 
to guarantee their employabiiity.'.' 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 colintry 
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); Mattf!r of Laureano, 
19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503; 506 (BIA 1980). 
Furthermore, counsel essentially contended that "foreign teachers," as a class, are eligible for a 
blanket waiver of the job offer requirement. As members of the professions, teachers are included in 
the statutory clause at section 203(b )(2)(A) that includes the job offer requirement. 
This claim assumes the conclusion that counsel meant to prove, specifically, that it is in the national 
interest for the petitioner, rather than a qualified United States teacher, to be the one teaching those 
particular students. 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.'' The study 
that counsel cited, the "SPeNSE Study of Personal Needs in Special Education," did not indicate, as 
(b)(6)
Page7 
counsel claimed, that 59% of United States special education teachers have a master's degree "or 
equivalent." Rather, as quoted by counse~ the stUdy stated: "Fifty-nine percent of special educators 
had their Master's degree." The petitioner in this proceeding took some graduate-level courses but 
did not complete a master's degree. By counsel's own reasoning, the average United States special 
education teacher possesses higher academic credentials than the petitioner does. Later in the brie~ 
counsel repeatedly claims that the petitioner holds a master's degree (rather than its defined 
equivalent), but there is no evidence to support this claim. 
Counsel asserted that the petitioner possesses qualifications above the bare minimum required for 
the job she seeks, but cannot ''tailor-fit" an application for labor certification to show those 
qualifications. The Department ofLabor, however, has already approved a labor certification for the 
petitioner, and therefore counsel's speculation contradicts documented facts. 
Sp~cifically, USCIS records show that filed a petition, with an approved labor certification, 
seeking to classify the alien as a member of the professions under section 203(b)(3) of the Act. The 
director approved that petition on Februl:lfY 23, 2009; the approved petition has a priority date of 
May 30, 2008. There is no indication that\ withdrew that petition or that the director revoked 
its approval; the approved petition remains in effect. There is, therefore,. little point in speculating 
whether the petitioner could obtain an approved labor certification, as she has already done so. 
' 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.F.R. § 103.3(c), NYSDOT is 
binding precedent on all USCIS employees, and counsel's attempts to set it aside and synthesize an 
alternative standard from unrelated statutes cannot succeed. 
The director denied the petition on December 12, 2012. The director discussed the petitioner's 
evidence and quoted from several witness letters, and concluded that "[t]he petitioner's employment 
is limited to a local impact. The petitioner has not established that Congress intended the national 
interest waiver to serve as a blanket waiver for all teachers." 
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's emphasis). Counsel, however, identifies no specific legislative or regul1;1tory provisions 
that exempt school teachers from NYSDOT or reduce its impact on them. 
The assertion that the NCLBA is tantamount to a retraction or modification of NYSDOT is not 
persuasive; that legislation did not amend section 203(b)(2) ofthe Act. In contrast, section 5 of the 
Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95 (November 12, 1999), 
(b)(6)
I I I • 
PageS 
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 oftheir 
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's emphasis.) Counse~ above, highlighted the abridged phrase "national educational 
interests," but the very same quoted passage also mcludes the job offer requirement, i.e., the 
requiremenfthat 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 ofthe statute that counsel quotes on appea~ an alien professional holding an advanced 
degree is· presumptively subject to the job offer requirement, even if that alien ''will substantially 
benefit prospectively the national ... educational intere.sts ... of the United States." Neither the 
Immigration and Nationality Act nor the NCLBA, 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 discussed, at length, . the "achievement gap" that continues to challenge educators 
nationwide. Closing that gap is a national goa~ but it does not follow that the petitioner's efforts 
toward that goal are, themselves, national in soope. Counsel does not show 
that the petitioner has, in 
fact; made significant strides in "closing the achievement gap." Instead, counsel cited statistics 
showing "that out of the 24 Maryland school districts ranked riear the -bottom" in 2012. 
Counsel stated: ''The fact that did not meet its 2012 AMO target for Reading proficiency 
underscores the importance of having effective teachers of Reading/Language Arts in each 
classroom" By 2012, the petitioner had been working for for seven years. The district's 
continued low ranking suggests that, even at the local level, the petitioner's efforts have not resulted 
in measurable overall improvements;· the record does not show that the petitioner has transformed 
into a model for other districts to emulate, or that the· petitioner has had unusual success 
even within her own classroom Counsel does not explain how the petitioner's future work will 
"clos[ e] the achievement gap" when there is no evidence that her past work has done so to any 
significant extent. 
In a similar vein, cqunsel asserts that there remains a pressing need for educational reform, because 
past efforts such as Teach For America have not produced satisfactory results. Counsel does not 
(b)(6)' . . . 
Page9 
show that the petitioner's individual efforts, after several years in the United States, have stood out 
in this regard. · · 
Counsel protests . that "the Director has easily dismissed the [petitioner's] incomparable 
accomplishments," but submits no credible evidence to show that the petitioner's ·accomplishments 
are "incomparable" as claimed. Instead, · counsel lists previously submitted materials and declares 
them to constitute "overwhelming evidence" of eligibility. 
Counsel asserts that NYSDOT's guidelines amount to ''hypotheticals [that] hold no water," and 
elsewhere contends that the labor certification process cannot accommodate the petitioner's 
qualifications. This assertion is not only hypothetical itself, but also dem'?nstrably counter-factual as 
the petitioner has already obtained a labor certification and, on that basis, an approved petition. 
Counsel contends that, under the NCLB~ schools that fail to meet specified be~chmarks 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. 
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 fur teachers. Eligibility 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 1n 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.