dismissed EB-2 NIW Case: Special Education

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
JUL 2 6 2013 
INRE: Petitioner: 
Beneficiary: 
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/fonns for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
L))Oe;in~ 
( Ron Rosenberg 
't Acting 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 I-140, the petitioner seeks employment as an "Elementary Special Education 
Teacher" for At the time of filing, the petitioner was 
teaching at ' School in Maryland where she has worked since October 
2005. 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. 
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, 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 (NYSD01), 22 I&N Dec. 215, 217-18 (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 has established that her work as a special educator is in an area of substantial intrinsic 
merit. It remains, then, to determine whether the proposed benefits of the petitioner's work would 
be national in scope and whether she will benefit the national interest to a greater extent than an 
available U.S . worker with the same minimum qualifications. 
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Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. !d. at 220. Moreover, it cannot suffice to state that 
the alien 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 Department 
of Labor. !d. at 221. 
The petitioner filed the Form I-140 petition on June 29, 2012. In Part 4 of the Form I-140, the 
petitioner answered "yes" to whether any petitions had previously been filed on her behalf. The 
record reflects that filed a Form I-140 petition, with an approved labor certification, on her 
behalf on November 25, 2008, to classify her as a professional under section 203(b)(3) of the Act. 
The Texas Service Center approved the petition on February 7, 2009, with a priority date of May 31, 
2008. 
In a June 27, 2012 letter accompanying the petition, counsel stated that the petitioner merits the 
national interest waiver due to her equivalent master's degree in special education, almost twelve 
years of post-baccalaureate progressive work experience, receipt of a Maryland's Initiative for New 
Teachers (MINT) Small Grants Award (2006), receipt of a Certificate of Recognition from the 
Pilipino Educators Network (PEN) for "outstanding service and dedication as a member of the PEN 
CORE TEAM" (2010), impact on her special education students, and improvement of United States 
education. Academic degrees, experience, and recognition such as awards 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. The petitioner's awards and her impact on her students and on improving 
United States education will be further discussed later in this decision. 
The petition included a 5-page "Personal Statement" signed by the petitioner, discussing her 
background and career. The petitioner stated: 
In September 2005, I was hired and sponsored bv the 
System as a Special Education teacher at School in Maryland 
-a regionally accredited special education center categorized as having the "most restrictive 
environment" in special education. I'm working as a special education teacher which is a 
hard-to-staff position in a self-contained classroom with typically 6 children with severe and 
multiple disabilities. These include autism, emotional disturbance, learning disabilities, 
intellectual disabilities, speech and language impairments, orthopaedic, and other health 
impairments. 
* * * 
With all the years of productive experience and service, accomplishments, and growing 
passion to educate, I would like to express my sincerest desire in becoming a permanent 
resident of the United States of America, to become a law-abiding citizen with a mission to 
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continue practicing my profession and helping the children with special needs in the Unite 
[sic] States of America, not only receive quality education but to give them a chance for a 
better life as a part of the society. I have a firm conviction to continuously maintain a high 
level of professional competence and integrity to benefit the children with special needs and 
their families . Using evidence and research-based instruction, I will develop the highest 
possible learning outcomes and quality life potential in ways that respect their dignity, 
culture, language and background. I will continue to practice with the professional ethics, 
standards, and policies that influence professional practice. 
With your consideration, hopefully I'll be able to continue to be part of ~ 
School's teaching staff and continue my endeavor in helping the students United 
States [sic] receive a quality education and life-long learning experience. 
The petitioner commented that she is serving in "a hard-to-staff position," but assuming the 
petitioner's teaching skills are unique, the classification sought was not designed merely to alleviate 
skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment certification process. NYSDOT, 22 I&N Dec. at 
221. Regarding the petitioner's "desire in becoming a permanent resident of the United States of 
America," the petitioner was already the beneficiary of an approved immigrant petition three years 
before the filing date of the present petition. Therefore, the issue in the present petition is whether 
she qualifies for a higher classification than the one already granted to her. Approval of a second 
petition would not guarantee approval of an adjustment application. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process . The beneficiary is not, by mere approval of the petition, entitled 
to an immigrant visa. Matter of Ho, 19 I&N Dec. 582, 589 (BIA 1988). 
In her statement, the petitioner did not mention the NYSDOT guidelines or explain how she meets 
them. The petitioner expressed general goals such as helping special needs students in the United 
States receive a "quality education," but the record does not show how the petitioner's work would 
impact the field beyond . With regard to the petitioner's special education teaching duties, 
there is no evidence establishing that the benefits of her work would extend beyond her students at 
School such that they might have a national impact. NYSDOT, 22 I&N Dec. 
at 217, n.3. 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, 
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. 
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/d. In the present matter, the benefits of the petitioner's impact as a special educator would be 
limited to students at her school and, therefore, so attenuated at the national level as to be negligible. 
In addition, the record lacks specific examples of how the petitioner's work as a teacher has influenced 
the education field on a national level. 
The petitioner submitted various letters of support discussing the petitioner's work as a special 
education teacher. As some of the letters contain redundant claims already addressed in other letters, 
not every letter will be quoted. Instead, only selected examples will be discussed to illustrate the 
nature of the references' claims. 
, Principal, School, stated: 
[The petitioner] has been employed as a special educator at School 
since October 2005. During this time she continues to provide the multiply disabled students 
an appropriate educational program. [The petitioner] has excellent technology skills and she 
utilizes technology daily in her classroom and she has graciously assisted many other staff 
with technology issues. [The petitioner] has a keen understanding of the various disabilities 
and the impact the disabilities have on learning. . . . Her classroom is inviting, structured and 
instructional areas are clearly evident. She continually stresses the importance of 
communication from her students from verbal responses, eye contact, and the use of Picture 
Communication Symbols (PCS), Topic boards, Augmentative Communication Devices, and 
written words. . . . [The petitioner] is a very organized, thorough and perceptive educator. 
She relates well to students staff and parents. She is patient, warm, and caring and 
recognizes the need for daily structure and routine. 
[The petitioner] has volunteered for the third year to part1c1pate in the Framework for 
Teaching Pilot Teacher Evaluation Model. She has completed the requirements of the 
program and been able to identify areas of strength and areas of growth needed to support her 
teaching practice. 
[The petitioner] has demonstrated exemplary work in creating artifacts and portfolios for her 
students taking the Alternative Maryland State Assessment (ALT-MSA). During MDT/IEP 
[Multidisciplinary Team/Individualized Education Program] meetings with the families of 
her students, [the petitioner] consistently displays a positive attitude, professionalism and is 
organized and methodical in her approach. She communicates sensitive information in a very 
tactful and caring manner. She is an excellent listener to parental concerns and has offered 
workable suggestions to families regarding academics, communication, and health and 
behavior issues. 
Ms. comments on the petitioner's teaching skills and act1v1t1es at 
School, but Ms. tloes not indicate that the petitioner's work has had, or will continue to have, 
an impact beyond the students under her tutelage and the local school system that employed her. At 
issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
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classification she seeks. A petitioner must demonstrate a past history of achievement with some 
degree of influence on the field as a whole. /d. at 219, n. 6. 
Occupational Therapist, School, stated: 
[The petitioner] has worked here at ~ ~ School for the past 7 years. . . . 
[The petitioner] has worked in classrooms with students with autism, orthopedic needs, 
vision needs, and behavioral concerns. . . . She is excellent at breaking down the material 
and presenting it at the level that each individual student is on in her classroom. Students 
with orthopedic and visual needs require further adaptations. For example she makes sure her 
students with orthopedic needs follow the plan laid out by the Physical Therapist and she 
puts them in their equipment so they can walk in the building. She even takes it a step farther 
and gives them the opportunity to walk when she takes her students out on CBI (Community 
Based Instruction) trips out in the community. She has worked with visually impaired 
students as well. She has modified their material so that everything she presents to them is 
tactile. On CBI trips they bring their canes and learn how to use them in the community. She 
is very patient with her students. She has made significant gains with students with strong 
behavioral issues, that many teachers prior to her have been unable to change. She has 
demonstrated professionalism in her teaching, her relationship with her colleagues, and 
during IEP (Individualized Educational Plan) meetings with parents. She has learned to be 
very proficient with writing and documenting for ALT MSA (Alternative Maryland State 
Assessment) which is very time consuming and point specific to each individual student. 
This is a very dependable teacher who is very well valued here at 
Ms. discusses the petitioner's work as a special educator at School, 
but Ms. fails to provide specific examples of how the petitioner's work has influenced the 
field as a whole. 
Speech/Language Pathologist, 
[The petitioner] is a special education teacher at 
multiply-handicapped children in 
* * * 
School, stated: 
School, a school for 
Maryland. 
[The petitioner] is, by far, the most professional, talented, organized, creative, and caring 
special education teacher with whom I have ever worked. She tirelessly creates exciting 
learning activities for each and every one of her students. [The petitioner] is considered the 
technological leader for all staff members in our school. She constantly finds exciting 
computer programs or applications for her students - enticing them to learn! She 
collaborates well with all specialists and consistently follows through with the specialists' 
suggestions for the good of her students. Losing [the petitioner] as a special educator would 
be a huge loss for School! 
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Ms. comments favorably on the petitioner's teaching qualities and use of 
computer technologies at School, but does not indicate how the petitioner's 
impact or influence as a teacher is national in scope. 
, Special Education Teacher , School, stated: 
[The petitioner] is currently assigned to the autism program of the school. In this role, she 
works directly with students and coordinates closely with the special services team 
comprising of counselors, speech/pathologist, physical therapist, occupational therapist, 
vision and mobility instructor, and psychologist. Together with the transdisciplinary team, 
[the petitioner] assesses students' needs and develops individual educational plans necessary 
for students to develop skills needed to be successful in the regular classroom. 
[The petitioner] is a qualified, professional teacher. She quickly gains the confidence of the 
parents and her colleagues. They view her as a valuable resource and solid educator. Of 
worthy mention is [the petitioner's] ability to accurately diagnose learning limitations 
inherent in her students and she is able to effectively prescribe the appropriate support to help 
these children. She relates well with her students, colleagues and parents. 
I have the opportunity to mentor [the petitioner] and found her to be an equable person with 
above average common sense, good humor and a comfortable amount of self-confidence. In 
summary, [the petitioner] is a committed and competent educator. 
Ms. discusses the petitioner 's special education duties and personal attributes, but Ms. __ 
comments do not set the petitioner apart from other competent and qualified teachers, or explain how 
the petitioner 's work has impacted the field beyond her school. 
Technology Coordinator, School, stated: 
[The petitioner] and I have worked together for 6 years now in this school. ... I have made 
frequent visits to [the petitioner's] classroom on different times of the day. I see her utilize 
her technology equipment on a daily basis and on different subject areas. 
Her students are also capable in using these technologies because she gives them ample 
opportunities to explore and use the equipment to do some of their class work. She uses 
computer desktops , a laptop, and an Elmo projector and visualize with camera to focus on the 
different areas in the classroom she wants to highlight during her presentation of the lesson. 
She also utilizes lesson presentations on DVDs on TV, power point presentations and internet 
resources to enrich her lessons. She develops multi-sensory 
lesson plans to meet the needs of 
auditory, visual, tactile, and kinesthetic learners. She also sees to it that various forms of 
technology are incorporated in each lesson together with use of manipulative and learning 
centers. Her students are focused and find enjoyment and always look forward to utilizing 
these technologies because she encourages them to explore these resources. 
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Mr. 
but Mr. 
in scope. 
comments on the petitioner's utilization of technology equipment in her classroom, 
does not indicate how the petitioner's impact or influence as a teacher is national 
School Counselor, School, stated: 
In her position of Special Education Classroom Teacher here at 
is very professional and an asset to our school. 
[the petitioner] 
Based on my experience working with [the petitioner], she has good communication skills, 
can work independently and is able to follow through to ensure that any assignment is 
completed in a timely manner. 
During the time that I have worked with [the petitioner], she has exhibited good classroom 
management, and has been able to successfully manage her Individual Education Program 
(IEP) caseload. [The petitioner] has shown that she has good communication with parents, 
and has wonderful rapport with her students. She has shown a great ability to motivate and 
teach our special needs students with enthusiasm and a wonderful use of technology. 
She has also been able to positively coordinate her classroom staff which includes classroom 
aids, assistants and paraprofessionals. She effectively schedules and manages the 
paraprofessionals to maintain efficient classroom operation. 
Although Ms. describes the petitioner as having good communication skills, an independent 
worker, prompt in completing her assignments, exhibiting good classroom management, 
enthusiastic, an able motivator, and an effective coordinator of her classroom staff, Ms. 
comments do not set the petitioner apart from other competent and qualified teachers, or explain how 
the petitioner has impacted the field beyond her school. Regardless of the petitioner's particular 
experience or skills, even assuming they are unique, the benefit that her skills or background will 
provide to the United States must also considerably outweigh the inherent national interest in protecting 
U.S. workers through the labor certification process. NYSDOT, 22 I&N Dec. at 221. 
stated: 
[The petitioner] was my granddaughter special education teacher for six 
years .... [The petitioner] saw all of the potential in this child and never let go of her. She 
taught to read, to count, to be self-sufficient and to learn how to manage her emotions 
and behaviors through using her words. [The petitioner] spent time allowing to grow 
and encouraged her to do more even when did not want to. [The petitioner] was always 
thinking of creative ways to challenge to learn. She never gave up on her. Her ability to 
teach children with disabilities was outstanding. 
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Ms. speaks highly of the petitioner's interactions with her granddaughter and her comments 
demonstrate that the petitioner works in an area of substantial intrinsic merit. However, Ms. 
comments do not indicate 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 qualified special 
education teachers. 
stated: 
My daughter attended School for 11 years. For her last 5 years at 
, [the petitioner] was her educator and advocate. [The petitioner] showed 
companion [sic], understanding and dedication to the well-being of all her students. [The 
petitioner] possessed a quality to pull out the best in each student. For example activities and 
learning skills would not do for others; [the petitioner] was able to incorporate 
strategies that would aid her in wanting to participate. She always took the extra steps for 
safety of all her students which is very important in this day and time. [The petitioner] has 
proven to be very trustworthy person in caring for all the special needs students. 
There are only a few good educators that are able to set important goals for the growth of 
each student individual IEP and [the petitioner] was one of the few. She has always showed 
dedication to each student growth by doing the extra that was needed when no one else 
would .... She is a highly qualified special need educator, advocate and resource. She must 
be a part of the system for the growth of our special need children because of her 
companion [sic], dedication and skills. 
Ms. praises the petitioner's skills as a special educator, but Ms. fails to provide 
specific examples of how the petitioner's work has influenced the field as a whole. 
stated: 
[The petitioner] was my daughter's teacher for 3 years (2008-2009, 2009-2010, and 2010-
2011 school years). My daughter has multiple disabilities. [The petitioner] was an 
outstanding, supportive and patient teacher to my daughter. 
* * * 
On a daily basis, we received reports on our daughter's day. [The petitioner] was always very 
responsive to my emails and notes. 
On a weekly basis, [the petitioner] accompanied my daughter and classmates to Community 
Based Instruction activities. [The petitioner] was instrumental in improving my daughter's 
behavior in public setting such as stores and restaurants. 
* * * 
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age 11 
In the classroom, [the petitioner] supported and nurtured my daughter's individualized 
education plan and goals. She was a regular and engaged participant in each meeting we had 
to discuss my daughter's Individualized Educational Plan goals and objectives. 
* * * 
In a time when our population of individual disabilities in our country continues to increase 
and with a shortage of Special Education Teachers in the United States, we cannot afford to 
lose a passionate and dedicated teacher like [the petitioner]. 
Ms. comments on the petitioner's work with her daughter, but Ms. does not explain 
how the petitioner's work has influenced the field on a national level. In addition, while Ms. 
points to "a shortage of Special Education Teachers in the United States," the classification sought 
was not designed merely to alleviate skill shortages in a given field. As previously discussed, that 
issue properly falls under the jurisdiction of the Department of Labor through the alien employment 
certification process. NYSDOT, 22 I&N Dec. at 221. The preceding references praise the 
petitioner's teaching abilities and personal character, but do did not demonstrate that the petitioner's 
work has had an impact or influence outside of the school where she has worked. They did not 
address the NYSDOT guidelines which, as published precedent, are binding on all USCIS employees. 
See 8 C.P.R. § 103.3(c). That decision cited school teachers as an example of a profession in a field 
with overall national importance (education), but in which individual workers generally do not 
produce benefits that are national in scope. !d. at 217 n.3. 
· 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&NDec. 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 of letters of support from the petitioner's personal 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"). 
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The petitioner submitted the following: 
1. Certificate of Achievement (2006) from County Executive, ~ ~···--
aryland in honor of the petitioner's "service as an educator in the 
Public School System"; 
2. Certificate from the Maryland State Department of Education honoring the petitioner for 
being selected to receive a "2006 MINT Small Grants Award"; 
3. Certificate of Recognition (2006) from the Board of Education 
presented to the petitioner "for winning the Maryland State Department of Education 
New Teachers Award Grant"; 
4. A February 22, 2006 letter from Member of Congress, Fourth District, 
Maryland congratulating the petitioner for "being awarded the Maryland fuitiative for 
New Teachers grant"; 
5. Certificate of Recognition (2010) from the _ for "outstanding 
service and dedication as a member of the PEN CORE TEAM" (2010); 
6. Maryland Educator Certificate; 
7. Colorado Professional Teacher license; 
8. New Mexico Special Education license; 
9. Physical Therapist registration certificate from the Board of Physical and Occupational 
Therapy, Philippines; 
10. Physical Therapist license from the Professional Regulation Commission, Manila; 
11. Physical Therapist Professional Identification Card from the Professional Regulation 
Commission, Manila 
12. Maryland State Teachers Association membership card; 
13. Certificate of Membership for the Pilipino Educators Network; and 
14. Certificate of Appreciation from the Pilipino Educators Network "for having served as 
Chair of the Membership Committee ... from October 1, 2010 to September 30, 2012." 
Licenses, professional memberships, and institutional recognition are all elements that can contribute 
toward a finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii)(C), (E) and (F), respectively. 
As noted previously, exceptional ability in the sciences, the arts or business is not sufficient to 
warrant the national interest waiver. The plain language of section 203(b )(2)(A) of the Act indicates 
that aliens of exceptional ability are subject to the job offer requirement (including alien employment 
certification). 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 for 
have more than local significance. For instance, the petitioner's MINT Small Grants Award for 
"Beginning Teachers" provided funding to purchase "Intelli Tactiles Pre-Braille Concepts" software 
for 54 visually impaired students at School. There is no documentary 
evidence showing that the petitioner's licenses, professional memberships, and awards are indicative 
of her influence on the field of special education at the national level. 
The petitioner also submitted copies of her "satisfactory" teacher evaluations and classroom 
observations from School. The petitioner, however, did not submit 
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documentary evidence indicating that she has impacted the field to a substantially greater degree than 
other similary qualified special education teachers. Moreover, there is no evidence showing that the 
petitioner's specific work has had significant impact outside of the school where she has taught. 
In addition, the petitioner submitted numerous certificates of participation, completion, and 
attendance for training courses, seminars, and conferences relating to her professional development. 
While taking courses and attending seminars and conferences are ways to increase one's 
professional knowledge and to improve as a teacher, there is nothing inherent in these activities to 
establish eligibility for the national interest waiver. 
The director issued a request for evidence on September 20, 2012, instructing the petitioner to 
"submit evidence to establish that the beneficiary's past record justifies projections of future benefit 
to the nation." 
In response, counsel cited the No Child Left Behind Act (NCLBA) and other government initiatives 
to reform and improve public education. Counsel asserted that section 203(b)(2)(B)(i) of the Act 
does not contain clear guidance on eligibility for the waiver, and claims that Congress subsequently 
filled that gap with the passage of the NCLBA. Counsel noted that Congress passed the NCLBA 
three years after the issuance of NYSDOT as a precedent decision, and claims that "[t]he obscurity in 
the law that NYSDOT sought to address has been clarified," because "Congress has spelled out the 
national interest with respect to public elementary and secondary school education" through such 
legislation. Counsel, however, identified no specific legislative or regulatory provisions that exempt 
school teachers from NYSDOT or reduce its impact on them. 
Counsel did not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b )(2) of the Act. 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). In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 
106-95 (November 12, 1999), specifically amended the Immigration and Nationality Act by adding 
section 203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. Because Congress 
not only can amend the Act to clarify the waiver provisions, but has in fact done so in direct 
response to NYSDOT, counsel has not shown that the NCLBA indirectly implies a similar legislative 
change. 
Counsel asserted that the benefit arising from the petitioner's work is national in scope because of 
the "national priority goal of closing the achievement gap." The record, however, contains no 
evidence that the petitioner's efforts have significantly closed that gap. 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. See NYSDOT, 22 I&N Dec. 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. 
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Counsel continued: 
The national priority goal of closing the achievement gaps between minority and nonminority 
students, and between disadvantaged and more advantaged children is especially relevant in 
the context of _____ and . The 2012 MSA [Maryland State 
Assessment] Reading results show that out of the 24 Maryland school districts 
ranked near the bottom at the 'All Student' level for each MSA-covered grade level .... 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
~ ~ ~~ ~ did not meet its Reading proficiency AMO targets .... 
Although the petitioner has worked for there is no documentary evidence showing that she 
ever worked at the . Regardless, the petitioner has worked for _____ since 
2005, and thus had been there for a number of years before the administration of the 2012 MSA 
tests. Counsel did not explain how the 2012 MSA results for (which indicate low rankings 
relative to other Maryland school districts) establish that the petitioner has played an effective role in 
"closing the achievement gap." 
Counsel stated that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but he cited no evidence to support that claim. 
As previously discussed, the unsupported assertions of counsel do not constitute evidence. See Matter 
of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez­
Sanchez, 17 I&N Dec. at 506. In addition, while counsel asserted that the petitioner has "proven 
success in raising proficiency of her students," he did not point to specific STEM test results or other 
documentary evidence in the record to support the assertion. Regardless, there is no documentation 
demonstratin£ that the petitioner has had an impact or influence outside of 
School or 
Counsel asserted that providing "legal immigrant status for 'Highly Qualified Special Education 
Teachers' like [the petitioner] ... will not only help improve the Education in the country but more 
importantly serve as 'key to the nation's economic prosperity."' Counsel did not explain how the 
actions of one teacher would contribute significantly to improving the national educational system or 
the U.S. economy. Congress could have created a blanket waiver for special education teachers, but 
did not do so. Instead, the job offer requirement applies to members of the professions (such as 
public school teachers) and to aliens of exceptional ability (i.e., foreign national workers who show a 
degree of expertise significantly above that ordinarily encountered in a given field). 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the U.S. Department of Labor considers a bachelor's degree, rather than a master's degree 
and experience, to be the minimum educational requirement for a special education teacher. The 
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petitioner submitted information from the Occupational Outlook Handbook describing what the U.S. 
Department of Labor considers to be the minimum qualifications necessary to become a special 
education 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. 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification. 
* * * 
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. 
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Some states allow special education teachers to transfer their licenses from another state. 
However, some states require even an experienced teacher to pass their own licensing 
requirements. 
All states offer an alternative route to certification for people who already have a bachelor's 
degree but lack the education courses required for 
certification. Some alternative certification 
programs allow candidates to begin teaching immediately, under the close supervision of an 
experienced teacher. 
Counsel emphasized "the critical timeline" and "time-sensitive obligation" for hiring "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 Special 
Education 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. 
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 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 
petitioner's own approved labor certification required 
her to hold a bachelor's degree in education or 
physical therapy, and to "have or be immediately eligible for Maryland Teaching Certificate," 
elements consistent with the "Highly Qualified" designation. Thus, the petitioner's level of 
education and experience are not required for "highly qualified" status under the NCLBA. Counsel, 
therefore, did not support the claim that the labor certification process frustrates the NCLBA's 
mandate for schools to employ "highly qualified teachers." 
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 
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Page 17 
those schools." Counsel does not document "closure of ... schools" for failing to meet NCLBA 
requirements, and the record does not show that the petitioner's work has brought schools 
closer to meeting the NCLBA requirements. 
Counsel further stated: 
[The petitioner] is firmly committed to teaching at nJ\....-r.:i. However, _____ is currently 
barred for a two-year period ... from filing any employment-based immigrant and/or 
nonimmigrant petition pursuant to the terms of a settlement agreement it had entered into 
with the United States Department of Labor arising from willful violations of the 
H-1B regulations at 20 C.P.R. Part 655, subparts Hand I. 
The U.S. 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 by 1 This debarment means that is, temporarily, unable 
to file its own petition on the alien's behalf, and thus explains why labor certification is not an option 
in the short term. The inapplicability or unavailability of a labor certification cannot be viewed as 
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the alien will 
serve the national interest to a substantially greater degree than do others in the same field. 
NYSDOT, 22 I&N Dec. at 218 n.5. Any waiver must rest on the petitioner's individual 
qualifications, rather than on the circumstances that (temporarily) prevent from filing a 
petition on her behalf. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.P.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contained in the record of proceeding. See 8 C.P.R. § 103.2(b)(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished service center decisions are not similarly binding. See 8 C.P.R. § 103.3(c). 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher in School System." 
The 2etitioner submitted public school progress reports f01 and 
MSA Reading results for Prince _ _ and public schools; 
President George H.W. Bush's "Remarks on Signing the Immigration Act of 1990"; information 
about 
Public Law 94-142; a copy the Supreme Court decision in Brown v. Board of Education, 347 
U.S. 483 (1954); a copy of Section 1119 of the NCLBA; a statement by U.S. Secretary of Education 
1 The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.clol.gov/whd/immigration/HlBDebarment.htm, accessed on July 18, 2013, copy incorporated into the record 
of proceeding. 
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Arne Duncan on the National Assessment of Educational Progress Reading and Math 2011 Results; 
a September 26, 2011 article in Education Week entitled "Shortage of Special Education Teachers 
Includes Their Teachers"; an article entitled "STEM Sell: Are Math and Science Really More 
Important Than Other Subjects?"; "Barack Obama on Education" questions and answers posted at 
www.ontheissues.org; information about STEM fields printed from the online encyclopedia 
Wikipedia; an article entitled "Special Education Teacher Retention and Attrition: A Critical 
Analysis of the Literature"; abstract for a report entitled "SPeNSE: Study of Personnel Needs in 
Special Education"; an article in the Wall Street Journal entitled "The Importance of Science and 
Math Education"; and the written testimony of Microsoft's Bill Gates before the Committee on 
Science and Technology of the United States House of Representatives (March 12, 2008). As 
previously discussed, general arguments or information regarding the importance of a given field of 
endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an 
individual alien benefits the national interest by virtue of engaging in the field. NYSDOT, 22 I&N 
Dec. at 217. Such assertions and information address only the "substantial intrinsic merit" prong of 
NYSDOTs national interest test. None of the preceding documents demonstrate that the petitioner's 
specific work as a special educator has influenced the field as a whole. 
The director denied the petition on January 5, 2013. The director found 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. The director indicated that the petitioner had not shown that her work as a special 
education teacher would be national in scope. In addition, the director stated the petitioner had not 
demonstrated any contributions of such unusual significance that she merits the special benefit of a 
national interest waiver. 
On appeal, counsel asserts that "USCIS erred in g1vmg insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 as the guiding principle 
rather than the precedent case" NYSDOT. Counsel, however, does not point to any specific 
legislative or regulatory provisions in the NCLBA that exempt foreign school teachers from 
NYSDOT or reduce its impact on them. It is within Congress's power to establish a blanket waiver 
for teachers, "highly qualified" or otherwise, but contrary to counsel's assertions, that waiver does 
not yet exist. With regard to following the guidelines set forth in NYSDOT, by law, the USCIS does 
not have the discretion to reject published precedent. See 8 C.P.R. § 103.3(c), which indicates that 
precedent decisions are binding on all USCIS officers. 
Counsel further 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. 
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Page 19 
Counsel, above, highlights the 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 statute that 
supports the director's conclusion. By the plain language 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 . .. educational 
interests ... of the United States." Neither the Immigration and Nationality Act nor the NCLBA, 
separately or in combination, create or imply any blanket waiver for foreign teachers. 
Counsel states that the director's "decision did not present even one comparative candidate having at 
least the equivalent accomplishment as that of [the petitioner] to supports its determination." 
Counsel's assertion rests on the incorrect assumption that the NYSDOT guidelines amount to an 
item-by-item comparison of an alien's credentials with those of qualified United States workers. 
The key provision, however, is that the petitioner must establish a record of influence on the field as 
a whole. There is no provision in the statute, regulations, or NYSDOT requiring the director to 
specifically identify other equally qualified special educators. 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). 
Counsel asserts that the director "erred in disregarding evidence demonstrating the national scope of 
the petitioner's proposed benefit through her effective role in serving the national educational 
interest of closing the achievement gap." The overall importance of closing the achievement gap 
between minority and nonminority students does not imply that any one teacher will play a 
nationally significant role by educating her students in subject areas where performance deficiencies 
exist. Again, general arguments regarding the importance of a given field of endeavor, or the 
urgency of an issue facing the United States, address only the "substantial intrinsic merit" prong of 
NYSDOTs national interest test. NYSDOT, 22 I&N Dec. at 217. Regardless, as previously 
discussed, there is no documentary evidence showing that the petitioner has played an effective role 
in "closing the achievement gap" in or nationally. 
Counsel again points to the petitioner's MINT Small Grants Award for "Beginning Teachers" and 
other award certificates as evidence of her "past history of achievement." The petitioner's awards 
from and the Maryland State Department of Education and are local in 
nature or limited geographically to the state of Maryland, and do not show that the petitioner has had 
a wider impact on the field of special education. There is no documentary evidence demonstrating 
that any of the awards received by the petitioner are national in scope and indicative of her influence 
on the field as a whole. Counsel also points to the petitioner's "satisfactory" ratings and the written 
comments from her principal at School, but there is no documentary evidence 
showing that the petitioner's specific work has had significant impact 
outside of the schools where 
she taught or that her work has influenced the field to a substantially greater degree than that of other 
special educators. 
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Page 20 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. Once again, counsel's 
contention rests on the incorrect assumption that the NYSDOT guidelines amount to an item-by-item 
comparison of an alien's credentials with those of qualified United States workers. The pertinent 
eligibility factor set forth in NYSDOT, however, is that the petitioner must demonstrate a record of 
influence on the field as a whole. Such a requirement does not necessitate a review of other special 
education teachers' credentials. 
Counsel claims that "the Immigration Service is requiring more from the beneficiary's credentials 
and tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. As previously discussed, the threshold for 
exceptional ability is a separate determination from the threshold for the national interest waiver. It 
remains that the petitioner's evidence does not facially establish eligibility for the national interest 
waiver. The director did not require the petitioner to establish exceptional ability in her field. 
Instead, the director observed that the petitioner's evidence does not show that the petitioner's work 
has had an influence beyond the school where she has worked. 
Counsel states that the labor certification guidelines "require only a bachelor's degree," and 
therefore "may not meet the objective of employers to hire highly qualified teachers pursuant to No 
Child Left Behind." On page 15 of the appellate brief, however, counsel acknowledges that the 
statutory definition of a "Highly Qualified Teacher" requires only a bachelor's degree. Counsel does 
not reconcile these contradictory claims. 
Counsel cites to several studies pointing to a high turnover rate among special education teachers. 
As previously discussed, a shortage of qualified workers in a given field is an issue that falls under 
the jurisdiction of the Department of Labor through the alien employment certification process. 
NYSDOT, 22 I&N Dec. at 221. At best, this information shows that there is a demand for 
credentialed special education teachers, a demand that the labor certification process can - and, in 
this instance, did - address. Counsel, in effect, claims that the petitioner would have difficulty 
obtaining a benefit that she has, in fact, already secured. 
Much of the appellate brief consists of general statements about educational reform and discussion 
of perceived flaws in the labor certification process. The petitioner, however, has not established 
that Congress intended the national interest waiver to serve as a blanket waiver for special education 
teachers. It is the position of USCIS to grant national interest waivers on a case-by-case basis, rather 
than to establish blanket waivers for entire fields of specialization. !d. at 217. 
It is evident from a plain reading of the statute 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 that would justify 
a waiver of 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. Id. at 
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Page 21 
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.