dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: NOV 1 8 2014 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 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
ff~tberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a special education teacher for 
He began teaching at in 2007. 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 legal brief and a personal statement. 
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 
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). 
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Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
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 Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSD01), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Id. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. ld. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. Id. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 10, 2013. In an 
accompanying statement, the petitioner provided details about his past teaching career, and 
addressed the three prongs of the NYSDOT national interest test. The intrinsic merit of the 
petitioner's occupation is not in dispute. NYSDOT identified classroom instruction as an example of 
a meritorious occupation that lacks national scope. Id. at 217, n.3. The petitioner did not address 
this finding in the precedent decision, stating instead that "the effects of educational practices and 
reforms will always be universal and national in scope." The petitioner asserted that his efforts "are 
not limited only to _ but have reverberated nationally." The petitioner 
asserted that he has raised the standardized test scores of the students in his class, and stated: "If I am 
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able to do it in where academic challenges are evident, I could do the best of my 
performance anywhere in the U.S. as well." If the petitioner were to begin teaching in a new 
jurisdiction, the students there would begin to benefit directly from his work, but the petitioner has 
not shown that future students in Baltimore would continue to benefit as well. General assertions 
about the benefit of nationwide improvements in test scores do not establish individual eligibility 
without evidence that the petitioner, individually, is responsible for those improvements at a national 
level. 
Beyond his classroom activities, the petitioner stated: 
[T]he educational website, www . . .. that I conceptualized and created 
has a national reach. It is a stop-by for educators who want to browse or download 
educational resources, such as educational ideas, lesson plans and classroom 
activities. With the skills I have in writing and communication, and knowledge of 
technical and technology management and website content . . . , the benefit of 
promoting and communicating will be greatly emphasized for the well-being of the 
people of the United States. 
On the other hand, my active participation in the ~ 
organization, [as its] vice-president and its website creator ... has not 
only involved planning, event preparation, information dissemination locally. [Its] 
web portal ... has reached other educators across other states in the United States .... 
As a writer of work-texts, literary works ... [and] editor and book layout artist and 
cover designs of two published books in the United States by 
. .. what I have contributed ... will always have an impact and appeal to the readers 
across [the] United States and abroad. 
The petitioner is one of three credited authors of published in 2002 by 
_ in the Philippines. He is also one of three authors of 
~ , published in 2003 by the same publisher. The record contains no further 
information about these books. The publication of instructional materials can have national scope, 
but the petitioner has not shown that he has published such materials in the United States, or that his 
employer has instructed or authorized him to engage in work of this kind. 
The petitioner was also editor-in-chief of 
' while he was a student at the and a writer for 
"A Publication ofthe _ . --~ ~ -- --
~ 
" These materials from 
the Philippines have no demonstrated relevance to the petitioner's intended work as a special 
education teacher. 
The petitioner's publications in the United States have had no demonstrable connection to his work 
in special education. In the respective prefaces to the books, the petitioner described 
-~-- _ as "a collection of the author's insights, thoughts, dreams and experiences -
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written in a versified form of twelve lines ," and as "a collection of the composer 's 
musical compositions that include responsorial psalms (which words have been adapted from the 
and other compositions." On Form 1-140, the petitioner specified that he seeks 
employment-based classification as a special education teacher, rather than as a poet or composer of 
religious music. These activities, therefore, are not relevant to the application for the national 
interest waiver. 
The two books by ______ -·--------- _ _ . -~-- _ __, 
The petitioner did not submit excerpts from the texts of these books, but their titles strongly suggest 
religious content. Letters from Mr. indicate that he is the petitioner's uncle by maniage. 
Mr. did not claim to have any expertise in special education; rather, he described himself as 
"now retired from a technical career of installation and maintenance of heating, ventilation and air 
conditioning equipment." Any impact these books may have had would not be in the field of special 
education, and their impact would result primarily from the text rather than from the editing, layout, 
and cover designs. 
The petitioner has served as webmaster for some education-related web sites, including the site for 
and the site for Like virtually all public web 
sites, these sites are, in principle, viewable throughout the United States, but this does not establish 
that the benefit from those web sites is, or will be, national in scope. The web sites for and 
pertain, respectively, to a state organization for teachers of a particular 
national origin, and to a local public middle school. The petitioner has not established that these 
sites receive significant traffic from outside of their respective constituencies. A printout from the 
website includes the disclaimer "Unofficial Website." 
The petitioner has presented as a general resource for teachers and students, which 
can produce national-level benefits . The petitioner stated that the web site "is a stop-by for 
educators who want to browse or download educational resources, such as educational ideas, lesson 
plans and classroom activities," but he did not show that his web site includes any such content. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec . 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner has submitted only a partial printout of the web site's home page, consisting primarily 
of an essay entitled "A Teacher's Reflection." The evidence submitted , therefore, does not show 
that the petitioner has ever run a fully operational web site for a national audience, or that running 
such a web site would be part of his employment with 
Regarding the third prong of the NYSDOT national interest test, the petitioner stated: 
[My] educational achievements, skills and knowledge, dedication and valuing of 
education in its core, volunteerism without regard (for] returns, the inner calling and 
the innate drive to do service, the perseverance and happiness as a teacher, and the 
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experiences meant to make the best results in the lives of my students may 
differentiate me from any U.S. worker for the job available .... 
[A] thirst for knowledge and desire to know skills far . . . beyond operational 
understanding of music, technology, the arts, the education and the sciences make an 
effective and efficient combination in my persona as an educator and a teacher. They 
make me [a] dynamic, flowing, understanding, resolved, persistent believer that 
students regardless of abilities and disabilities will always learn - because there is 
always a way. 
The petitioner submitted copies of several documents relating to his professional credentials, 
including evidence of training and volunteer work, and a number of certificates. Some certificates 
note specific achievements or honors, such as his selection as Teacher of 
the Year for 2011, while others are more general certificates of appreciation or participation. The 
petitioner did not explain how any of these materials establish that his work has influenced the field 
as a whole, or will continue to have such influence in the future. 
The petitioner submitted several letters from individuals who worked with him in the Philippines or 
at These individuals attested to the petitioner's talent, dedication, and contributions to his 
employers and community, but they did not indicate that the petitioner has had the wider impact and 
influence necessary to qualify for the national interest waiver under NYSDOT. Other individuals, 
including are not educators, but attested to the petitioner's volunteer work, 
religious activity, and community work. 
Dr. , chief of the Field Effectiveness Division of the Philippines Department 
of Education, Region VII, stated that the petitioner "has explored creating his own website, 
educational resource in nature," the contents of which "are specified and downloadable, free of 
charge and most of them his own creations and writings . .. . Practically, his website's reach is for 
everyone with access to the internet and computers." As noted above, the petitioner has not shown 
what content is available on his website, and he has not established that other educators have relied 
on those materials, resulting in an overall improvement in education. 
The director issued a request for evidence on August 13, 2013. The director stated that the 
petitioner's "evidence does not state how his current employment as a special education teacher in 
the school district is national in scope." The director advised that the petitioner must establish that 
he "has a past record of specific prior achievement with some degree of influence on the field as a 
whole." 
In response, the petitioner submits a proposal for "The Creation of a Non-Profit Foundation with a 
Focus on Effective High-School-Life-Skills-Program Implementation in the Classrooms and in the 
Schools across the United States." The petitioner described elements of the foundation 's proposed 
program, including an 11-module training program, followed by monitoring of the schools where the 
newly trained teachers would work. 
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The petitioner did not claim that this foundation already exists. Rather, he describes the 
foundation's future activities, while acknowledging that the project now exists only as a proposal, 
and would take approximately three years to implement. The petitioner did not claim to have any 
prior experience in creating or running a foundation of the kind that he described in response to the 
request for evidence. Therefore, the record provides no basis for us to conclude that the newly 
proposed venture would succeed. 
Furthermore, the petitioner's initial submission included no mention of this program at all. Rather, 
he based his waiver application on the assertion that he would work as a special education teacher 
for The petitioner submits no evidence that the foundation would be an outgrowth of his 
work for , or that is even aware of this new proposal. 
A petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 
169, 175 (Comm'r 1998); see also 8 C.F.R. § 103.2(b)(1) and Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971), which require that foreign workers seeking employment-based immigrant 
classification must possess the necessary qualifications as of the filing date of the visa petition. Even if 
the petitioner had established that the foundation qualifies him for the waiver (which he has not 
done), that foundation apparently did not exist even as a proposal when the petitioner filed the 
petition in June 2013. His subsequent development of the proposal cannot retroactively qualify him 
for that earlier priority date. 
The director denied the petition on January 14, 2014, stating that the petitioner had established the 
intrinsic merit of education, but had not shown that the benefit from his intended employment would 
be national in scope. The director found that the petitioner "did not give any detailed evidence as to 
[his] past record of achievement in [his] field that has impacted it as a whole." 
On appeal, the petitioner states, via the appellate brief: 
[The petitioner] will in fact perform a role that is superior in degree [to that of] any 
US worker, who would have the same qualifications that he has. As a Special 
Education Teacher par excellence, he has [an] impeccable and solid educational 
background in his field and area of expertise. . . . [The petitioner] is indeed an 
epitome of a genuine Special Education Teacher that can create a climate for the 
advancement of students especially those with special needs and disabilities. 
Even if the petitioner had established exceptional ability, defined at 8 C.F.R. § 204.5(k)(2) as "a 
degree of expertise significantly above that ordinarily encountered," exceptional ability is not, on its 
face, a basis for the waiver. Section 203(b )(2)(A) of the Act states that aliens of exceptional ability 
are subject to the job requirement. Furthermore, the record does not establish that the petitioner's 
abilities are "superior ... [to] any US worker" as claimed on appeal. The petitioner's annual 
evaluations show three possible ratings: "Proficient," "Satisfactory," and "Unsatisfactory." The 
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petitioner's evaluations from show a combination of "Proficient" and "Satisfactory" ratings . 
These ratings are certainly favorable, but they do not suggest that the petitioner is in the upper 
echelons of all special education teachers in the United States, as implied in the brief. 
The petitioner, in the brief, contends that "his work as a special education teacher ... has a great 
national influence on the field of teaching ." The petitioner does not elaborate , and submits no 
evidence to support this claim. Instead, the petitioner asserts: ' for the past three 
years has increased its performance in Math and Reading .... If I am able to do it in 
where academic challenges are evident, I could do the best of my performance anywhere as well." 
Speculation about future influence is not evidence of influence , and the petitioner has not submitted 
evidence about the claimed improvement in . , or evidence that he, individually, is 
largely responsible for the claimed citywide improvement. 
The brief discusses the petitioner's proposal for a non-profit foundation. For reasons already 
discussed, his proposal for an organization that does not yet exist cannot qualify him for benefits 
with a June 2013 priority date. 
The petitioner "invok[es] the intent and spirit of the Humanitarian Relief based on USCIS 
Memorandum on November 15, 2013 for Filipino nationals." The petitioner , here, refers to a USCJS 
press release , "USCIS Reminds Filipino Nation a
ls Impacted by Typhoon Haiyan of Available 
Immigration Relief Measures ," which reads, in part: 
users understands that a natural disaster can affect an individual's ability to 
establish or maintain lawful immigration status in the United States. Therefore, 
Filipino nationals impacted by Typhoon Haiyan may be eligible to benefit from the 
following immigration relief measures: 
• Change or extension of nonimmigrant status for an individual currently in 
the United States, even when the request is filed after the authorized 
period of admission has expired; 
• Extension of certain grants of parole made by USCIS; 
• Extension of certain grants of advance parole, and expedited processing of 
advance parole requests; 
• Expedited adjudication and approval, where possible, of requests for off­
campus employment authorization for F-1 students experiencing severe 
economic hardship; 
• Expedited processing of immigrant petitions for immediate relatives of 
U.S. citizens; 
• Expedited adjudication of employment authorization applications , where 
appropriate; and 
• Assistance to LPRs stranded overseas without immigration or travel 
documents, such as Permanent Resident Cards 
(Green Cards). US CIS and 
the Department of State will coordinate on these matters when the LPR is 
stranded in a place that has no local users office. 
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All of the measures described above are temporary. The press release did not indicate or imply that 
the available humanitarian relief includes permanent immigration benefits. It did not mention the 
national interest waiver or imply that the waiver was among the forms of relief available. By statute, 
the standard for the waiver is the national interest, rather than humanitarian considerations such as a 
natural disaster in the petitioner's home country. 
The petitioner has submitted ample documentation of his work as a teacher in the Philippines and in 
the United States; his experience and dedication are not in dispute. What the petitioner has not 
established is the claim that his past work stands out from that of other teachers to an extent that 
justifies an exemption from the job offer requirement that, by statute, normally attaches to the 
immigrant classification that the petitioner has chosen to seek. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated 
reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.