dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: JUN 1 0 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 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, 
~~~~ 
~nRosenb~ 
Acting 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 petitioner filed a motion to reconsider, which the director dismissed. The petitioner then 
appealed the decision to the Administrative Appeals Office (AAO). The AAO summarily dismissed the 
appeal. The matter is now before the AAO on a motion to reconsider. The AAO will dismiss the 
motion. 
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 with progressive post-baccalaureate 
experience equivalent to an advanced degree. The petitioner seeks employment as a special education 
(SPED) teacher for in Maryland. The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the 
national interest of the United States. The director found that the petitioner qualifies for classification as 
a member of the professions with the defined 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 of the United States. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or U.S. 
Citizenship and Immigration Services (USCIS) policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 8 C.P.R. § 103.5(a)(3). A motion that does not 
meet applicable requirements shall be dismissed. 8 C.P.R.§ 103.5(a)(4). 
The petitioner filed the Form 1-140 petition on October 3, 2011, and the director denied the petition 
on July 5, 2012, stating that the petitioner had not met the guidelines set forth in the precedent 
decision In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. 
Comm'r 1998). The petitioner filed a motion to reconsider on August 6, 2012, which the director 
dismissed on September 17, 2012, stating that it did not meet the requirements of such a motion. 
The petitioner filed an appeal on October 22, 2012, supplemented by a brief submitted on November 
26, 2012. In summarily dismissing the appeal on January 29, 2013, the AAO stated: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 8 C.P.R.§ 103.3(a)(1)(v). 
The petitioner, on appeal, disputes elements of the director's July 2012 denial decision. 
The matter on appeal, however, is not the July 2012 denial of the petition, but the 
September 2012 dismissal of the motion to reconsider. The petitioner must overcome 
the September 2012 dismissal of the motion before the AAO will revisit the merits of 
any earlier decision. The present filing is not a timely appeal of the original denial 
decision, and the AAO will not treat it as though it were. 
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Counsel, on appeal, acknowledges the dismissal of the motion to reconsider, but makes 
no evident attempt to rebut or overcome it. Counsel, instead, essentially appeals the 
denial as though the motion and its dismissal never happened. Therefore, counsel has 
not shown that the AAO should withdraw the director's dismissal of the motion in order 
to clear the way for review of the underlying denial. 
Because counsel has failed to identify specifically an erroneous conclusion of law or a 
statement of fact in the director's last decision, counsel has specified no acceptable basis 
for the appeal and the AAO must summarily dismiss the appeal. 
On motion, the petitioner submits a 37-page brief from counsel. In that brief, counsel cites the 
USCIS regulation at 8 C.F.R. § 1 03.5(a)(3), and correctly observes that "the petitioner is not 
required to submit 'new evidence' for her Motion to Reconsider to be considered as properly filed 
and be given due course for review." The director, however, did not dismiss the August 2012 
motion due to a lack of"new evidence." 
Counsel states that the director's "17 September 2012 decision 
did not even state specific reasons" 
for dismissal of the motion, relying instead on the general statement that the petitioner's motion 
"does not demonstrate that laws, regulations, policies and/or court decisions were misapplied when 
making the decision." In the latest motion, counsel disputes the director's conclusion, claiming 
that 
the August 2012 motion contained a "rebuttal" to NYSDOT. Counsel, however, did not raise this 
point in the October 2012 appeal. Raising the issue now, in a later filing, does not overcome the 
summary dismissal of the October 2012 appeal, because it cannot retroactively establish that the 
AAO's January 2013 decision was in error at the time the AAO rendered that decision. The January 
2013 summary dismissal notice rested on the finding that counsel's November 2012 brief contained 
"no evident attempt to rebut or overcome" the director's September 2012 decision. Counsel, on 
motion, has shown no error of law or fact in this regard. Instead, counsel makes new assertions. 
Counsel has not shown that the AAO erred in summarily dismissing the October 2012 appeal. The 
AAO will therefore dismiss the motion to reconsider. 
Even if the AAO had not summarily dismissed the October 2012 appeal, the petitioner would not 
have prevailed on the merits. 
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 
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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 with at least five 
years of progressive post-baccalaureate experience, which the USCIS regulation at 8 C.P.R. 
§ 204.5(k)(2) defines as equivalent to a master's degree. (At the time she filed the petition, the 
petitioner has taken some graduate-level courses but had not yet received a graduate 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). 
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. 
The NYSDOT precedent decision 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 
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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. 
In the initial filing of the petition, counsel cited the petitioner's "authorship of several Special 
Education Curriculum Manuals." A section of the initial submission bears the heading "Published 
Works." While teaching at in the 
Philippines, the petitioner prepared the Handbook. The table of contents divides the 
handbook into "Background," "Philosophy , Mission-Vision , and Objectives, " "General 
Information," and ' Guidelines, Procedures, Definition of Terms." The petitioner indicated 
that the preparation of this handbook was a requirement for accreditation, and therefore a matter of 
administrative routine rather than a rare level of accomplishment. The petitioner's preparation of 
this document - for which the petitioner identified no publisher and documented no distribution 
outside of and accrediting authorities- does not support counsel's claim of the petitioner's 
"authorship of several Special Education Curriculum Manuals." 
The petitioner submitted a photocopied page (page 5) from an unidentified newsletter (possibly The 
Magister, a title that appears in the text), containing a short article by the petitioner, identified as 
"Our featured teacher artist for the quarter." The petitioner's article focused on her experience as a 
painter, and included examples of her paintings. The article included suggestions on how "a teacher 
artist can share in her class," but said little about the petitioner's teaching. The newsletter's 
distribution appears to have been limited to what the petitioner called "our tightly knit community of 
Filipino teachers in Maryland." 
The third item submitted as "Published Material" is an article from the 
'published in July 2011. The article stated that the petitioner 
"and hundreds of other Fili ino teachers flew to Maryland in 2007. They were recruited to teach in 
the United States at the ' The article indicated that the 
petitioner produced "spectacular results in raising student's [sic] abilities in reading and math," and 
"led several workshops for students and colleagues," but the article did not establish wider adoption 
of the petitioner's methods. This published material does not indicate that the petitioner or her work 
have attracted any attention outside of the Filipino community, or had influenced special education 
at a national level. 
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Counsel stated that the petitioner's waiver application rested in part on "her track record as a 
valuable leader, lecturer, trainer and coach of award-winning Special Ed student teams." To 
establish this claimed track record, the petitioner submitted letters from administrators, teachers, and 
parents of students. These witnesses praised the petitioner's abilities as a teacher, but did not 
indicate that her efforts have had or were likely to have an effect beyond the schools where she had 
worked. 
A section of the record headed "Awards/Recognitions" included four certificates from 
recognizing her "outstanding contribution in the Curriculum Development and the Quality of Special 
Education Service," and "Exceptional Professional Achievement and Devoted Service to the 
School." The certificates do not establish any impact or influence on special education in the United 
States. 
On March 2, 2012, the director issued a request for evidence. The director instructed the petitioner 
to "establish . .. a past record of specific prior achievement with some degree of influence on the 
field as a whole." In response, the petitioner submitted background documentation about special 
education, immigration legislation, and other matters. Counsel stated: 
Unlike other 
applications for National Interest Waiver [NIW], [the petitioner's] NIW 
Application finds solid basis in law making her proposed employment responsive to 
the National Interest so determined in said Federal Statutes and Programs. This 
renders her proposed employment national in scope .... 
I have obtained approvals for two (2) National Interest Waiver applications involving 
owners of healthcare staffing agency owners in which no specific federal initiative 
relates to their proposed employment unlike the one for Special Education teachers. 
Counsel did not identify any "specific federal initiative" that "relates to [the] proposed employment 
. 
. . [of] Special Education teachers." Instead, counsel cited federal legislation such as the 
Immigration Act of 1990 and the No Child Left Behind Act (NCLBA), and the Supreme Court's 
decision in Brown v. Board of Education, 347 U.S. 483 (1954). Counsel did not show that any of 
these authorities contained specific provisions for national interest waivers for teachers. 
Counsel discussed the overall merits of .education. These merits are not in dispute, but the national 
benefit from education as a general concept does not lend national scope to the work of one teacher. 
SeeNYSDOT, 22 I&N Dec. 217, n.3. 
Counsel asserted that labor certification, with its focus on minimally qualified workers, cannot take 
the petitioner's special talents and achievements into account. Counsel, however, did not establish 
that the petitioner stands out from other teachers to an extent that would warrant the waiver. 
Counsel contended that the petitioner "went through a tough screening process," but the record also 
shows that the petitioner is one of "hundreds of other FiliQino teachers" whom recruited 
more or less simultaneously. The record does not show that became a highly-ranked school 
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district as a result of this infusion of teachers, all of whom presumably underwent the same 
"screening process" as the petitioner. 
In the July 5, 2012 denial notice, the director concluded that the petitioner had not met the gUidelines 
set forth in · NYSDOT. On motion from that decision, counsel repeated the claim that there is an 
"essential difference" between most national interest waiver -petitions and those filed on behalf of 
"highly qualified teachers." Counsel listed some of the supporting exhibits submitted with the 
petition, and stated: "it has become inexplicable if not unreasonable that her qualifications have been 
found to be deficient." 
In dismissing the motion on September 17, 2012, the director stated: "it is understood that education 
is in the national interest. However, the impact of a single schoolteacher in one school would not be 
in the national interest for purposes of waiving the job offer requirement." The director concluded: 
"The information submitted with the motion does not demonstrate that laws, regulations, policies 
and/or court decisions were misapplied when making the decision." 
The petitioner appealed that decision with a 16-page brief in which counsel quoted the director's 
first decision, and listed the four certificates that awarded to the petitioner while she 
worked there. Counsel claimed: "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 noted previously, the threshold for 
exceptional ability is below, not above, the threshold for the national interest waiver. It remains that 
the petitioner's evidence does not 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 districts where she has worked. 
Counsel stated "the United States Congress has time and again, responsibly stepped up with well 
meaning legislations to help our present generation students recover from their dismal performance." 
Counsel cited the NCLBA as an example of education reform legislation. Counsel did not, however, 
establish that any of this legislation contained specific provisions granting blanket waivers to 
teachers. There is no evidence that the NCLBA modified or superseded NYSDOT; that legislation 
did not amend section 203(b )(2) of the Act. In contrast, section 5 of the Nursing Relief for 
Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 Stat. 1312 (1999), specifically amended the 
Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to that Act 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 cited high rates of attrition among special education teachers, while at the same time 
maintaining that the "request for waiver here is not bench marked on shortage." Rather, counsel 
asserted, the high rate of attrition indicates that United States workers have little interest in working 
in special education, and therefore granting the waiver "does not hurt in any single manner thinkable 
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the American work force." Contrary to counsel's claim, this appears to be a variation of a shortage­
based claim. The labor certification process is already in place to address such shortages. NYSDOT, 
22 I&N Dec. 218. 
Counsel stated that a waiver would ultimately serve the interests of United States teachers, because if 
schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Law," the 
result would be "not only ... closure of these schools but [also] loss of work for those working in 
those schools." Counsel does not document "closure of ... schools" for failing to meet NCLBA 
requirements, or show that the efforts of the petitioner and "hundreds of other Filipino teachers" 
have led to schools meeting those requirements. 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). 
The record does not support counsel's claim to have presented a "rebuttal" to NYSDOT. NYSDOT is 
a binding precedent decision. See 8 C.F.R. § 103.3(c). Counsel cites no statute, regulation, 
superseding precedent decision or court decision that retracts, annuls or modifies NYSDOT in a 
manner relevant to this proceeding. 
In the latest brief, counsel asserts 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 notes 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, identifies no specific legislative or regulatory provisions that exempt school 
teachers from NYSDOT or reduce its impact on them. 
Counsel states: 
With respect to the E21 visa classification, INA § 203(b )(2)(A) provides in relevant 
part that: "Visas shall be made available ... to qualified immigrants who are members 
of the professions holding advanced degrees or their equivalent or who because of their 
exceptional ability in the sciences, arts, or business, will substantially benefit 
prospectively the national ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States. 
Counsel, above, highlighted the 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 wording of the statute that counsel quotes on appeal, 
an alien professional holding an advanced degree is presumptively subject to the job offer 
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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 No Child 
Left Behind Act, nor any other initiatives, create or imply any blanket waiver for teachers. The 
existence of legislation recognizing the importance of education does not nullify legislation that 
specifically holds members of the professions (including teachers) to the job offer requirement that 
Congress created and has never repealed. 
By statute, engaging in a profession (such as teaching) does not presumptively entitle such 
professionals to the national interest waiver. Congress has not established any blanket waiver for 
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. Furthermore, the petitioner has provided 
conflicting information that casts doubt on fundamental claims and indicates that she has left the 
occupation on which the waiver request rests. On the basis of the evidence submitted, the petitioner 
has not established that a waiver of the requirement of an approved labor certification will be in the 
national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. Therefore, even if the petitioner had 
submitted a properly filed motion to reconsider, the AAO would not have approved the petition. 
ORDER: The t:notion is dismissed.